Appeals court rules professor can’t be punished for refusing to use transgender student’s preferred pronouns

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CINCINNATI, OH- Score one for common sense and free speech. A Christian college professor who was disciplined in 2018 for refusing to address a transgender student by his/her preferred pronouns, had his First Amendment rights upheld by the Sixth Circuit on Friday, ruling that a public university cannot compel the “academic speech” of its professors.

Professor Nicholas Meriwether, who is an evangelical Christian has been teaching at Shawnee State University since 1996. The student, who was not named filed a complaint against the professor after he refused to use preferred pronouns, Courthouse News reported.

Meriwether uses what is referred to as the “Socratic” method of teaching, using the pronouns “Mr.” and “Ms.” to call on students.

After the incident, the student confronted Meriwether and demanded he/she be called by his/her preferred pronouns, whereby the professor informed him/her of his religious beliefs and said that would not allow him to accede to the student’s demands.

The student told Meriwether he/she would get him fired, and after an investigation by the university, Meriwether received a written warning, with the institution alleging that he had created a hostile environment for the student. This seemed to fly in the face of the fact that the student had continued to excel academically.

Believing that his First Amendment rights were being compromised by the decision, and fearing that further violations could lead to his termination, he filed suit in federal court.

The case was forwarded to a magistrate judge after both the student and an advocacy group called Sexuality and Gender Acceptance got involved, and the lawsuit was ultimately dismissed.

Meriwether appealed to the Sixth Circuit court, which heard arguments in the case last November.

 

 

During oral arguments, Judge Amul Thapar asked the university if it would force a Jewish professor to honor a student’s request to be addressed as “My Fuhrer,” a reference to Adolf Hitler.

The case seemed to fly in opposition to a 2006 U.S. Supreme Court case, Garcetti v. Ceballos which saw the high court hold that comments made by government employees in the course of their normal duties are not protected speech under the First Amendment. The difference was that the high court specifically declined to extend that holding to either “scholarship or teaching.”  

“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, who was appointed to the circuit by former President Donald Trump said that his position has already been adopted in other federal circuits, specifically the Fourth, Fifth and Ninth Circuits.

He warned that a lack of First Amendment protection for college professors would give universities the ability to “wield alarming power to compel ideological conformity.”

He continued: “”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 said. “Public universities cannot act as ‘classroom thought police,’” the ruling continued.

In arguing their case, the university and intervening parties said that an “academic-freedom exception” to Garcetti does not apply to pronouns because their use is not related to classroom instruction,” a claim that Thapar disagreed with.

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“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.”

Within his opinion, the judge devoted several pages of his opinion to the significance pronouns have played over the course of history, noting that the feminist movement of the 20th century, and more recently the idea of gender identity.

He noted that Meriwether had gotten into the realm of “public concern” during the conflict with the student.

The university argued that its policy is designed to protect transgender students from discrimination, however Thapar responded that there is an equal and compelling interest in exposing college students to “contrarian” or opposing views.

In his decision, the judge also addressed the fact that Meriwether had in fact proposed a compromise—referring to the student by his/her last name—noting that arrangement had worked out fine, 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.”

That compromise also served as a basis for the panel’s decision to revive Meriwether’s claims under the free exercise of religion clause under the First Amendment, alleging the university changed its position on the case several times in order to target Meriwether 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.”

While the university claimed it had offered the professor the opportunity to forego the use of all pronouns or “sex-based terms” in his classes, Thapar saw to issues with that proposal: first it would violate Meriwether’s belief that “sex and gender are conclusively linked,” but it would also be a near impossible standard to maintain.

“And when Meriwether slipped up,” Thapar said, “which he inevitably would (especially after using these titles for twenty-five years), he cold face discipline. Our rights do not hinge on such a precarious balance.”

The other judges on the case were Judge David McKeague, who was appointed by President George W. Bush, and Joan Larsen, who was also appointed by President Trump.

Meriwether’s attorney John Bursch praised the court’s opinion in a statement issued 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.”

The attorney for Shawnee State University, Paul Kerridge wasn’t available to comment on the ruling.

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