BY HANK REICHMAN
In a January 2018 political philosophy class at Shawnee State University in Ohio Professor Nicholas Meriwether addressed a trans woman as “sir.” It was an accident, but when the student approached him after class to request that she be called “Ms.” like other women in the class, Meriwether refused, claiming that his Christian faith prevented him from talking about gender in a way he believed to be false. After several months of investigation and proposed and rejected solutions, Shawnee administrators concluded that Meriwether had created a “hostile environment” and issued a written warning saying he could be fired or suspended without pay for violating campus nondiscrimination policy.
Meriwether filed suit on First Amendment free speech grounds, but a district court rejected that effort. However, on March 26 a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit ruled otherwise. The panel concluded that the university had “punished a professor for his speech on a hotly contested issue.”
“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,” wrote Judge Amul Thapar, an appointee of President Donald Trump. “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,” the opinion read, “his free-speech claim may proceed.”
Even before the ruling, Northwestern University law professor Andrew Koppelman called Meriwether’s claim a case of “free speech gone wild.” Writing in The Hill, Koppelman warned that a victory for Meriwether could “invalidate the entire field of hostile environment harassment law.” Were Meriwether to prevail, he warned, “teachers at public colleges will have a constitutional right to subject their students to bigoted slurs. Much of anti-discrimination law would be deemed unconstitutional.”
Now Koppelman is one of 101 law professors, many from the Sixth Circuit, who have signed an amicus brief, prepared by Darren Rosenblum of Pace University and Brian Soucek of the University of California at Davis, in support of a rehearing or hearing en banc of the case. (AAUP Committee A members Emily Houh and Anil Kalhan are among the signatories.) Relying on U.S. Supreme Court and Sixth Circuit precedents, as well as on AAUP policy statements, the brief makes a cogent and, I believe, highly persuasive argument that “professors do not have the right to label their students in any way they see fit.” Moreover, the brief concludes that “academic freedom allows professors to lead and participate in classroom discussions in ways guided by their scholarly and pedagogical expertise. These were not what led Professor Meriwether to treat one student in his classroom differently from the rest. For that reason, his act of misgendering—as opposed to his discussions of gender—should not be protected by academic freedom.”
The following are edited excerpts from this important brief:
This case began because a professor mistakenly used the incorrect honorific. Mistakes happen, not least around gender, and they do not merit punishment. But Professor Meriwether refused to correct his mistake. He instead came to court objecting that administrators at his school were telling him to say certain words in his classroom, and not to say others. Framed at this level of generality, Professor Meriwether’s speech was being abridged. But as every public employee knows, this is not the level of generality at which the First Amendment operates. Public employees do not have the right to say whatever they want at work, and professors do not have the right to label their students in any way they see fit. Were it otherwise, our classrooms would no longer remain the kind of respectful, civil spaces that foster a “robust exchange of ideas.” [Keyishian v. The Bd. of Regents of the Univ. of the State of N.Y.(1967)]. As the Supreme Court has emphasized repeatedly, “[s]cholarship cannot flourish in an atmosphere of suspicion and distrust.” [Sweezy v. State of N.H. (1957) (plurality opinion)].
Academic freedom is not just freedom of speech for people who happen to be academics. In the context of teaching, academic freedom protects professors’ right to make pedagogical judgments, informed by their scholarly expertise, about how best to discuss issues that are relevant to the courses they have been hired to teach. [See generally American Association of University Professors & Association of American Colleges, Statement of Principles on Academic Freedom and Tenure (1940); Matthew W. Finkin & Robert C. Post, For the Common Good: Principles of American Academic Freedom (2009)].
What the panel’s opinion failed to recognize is that Professor Meriwether has personal rather than pedagogical reasons for wanting to say “Sir” or “Mr. Doe”—or to use no honorific at all. The words in question are modes of address, not positions taken as part of a discussion. And the views about gender Professor Meriwether wants to convey—in fact, impose—by using these modes of address are not academically relevant across all the contexts where he insists on expressing them. Thus, these aspects of Professor Meriwether’s teaching, unlike his decision to use honorifics in the first place, have nothing to do with academic freedom.
This Court has recognized these limits on academic freedom in previous cases. In Dambrot v. Central Michigan University, (6th Cir. 1995), Bonnell v. Lorenzo, (6th Cir. 2000), and Hardy v. Jefferson Community College, (6th Cir. 2001), this Court rightly emphasized the First Amendment’s special concern for professors’ academic freedom while also holding that the “lynchpin of the inquiry” in these cases is “the extent to which the speech advances an idea transcending personal interest or opinion which impacts our social and/or political lives.” In both Hardy and Bonnell this Court also held that academic freedom does not protect the words professors use “in a classroom setting where they are not germane to the subject matter.”
Amici who teach classes on the First Amendment might assign this Court’s opinions in Dambrot and Hardy. More controversially, some law professors might even quote in class the racial epithet at issue in those cases—just as Professor Hardy himself was punished for doing. Some of amici’s colleagues have offered pedagogical reasons for accurately quoting racial and other slurs when relevant in class. [See, e.g., Randall Kennedy and Eugene Volokh, “The New Taboo: Quoting Epithets in the Classroom and Beyond,” 49 Cap. Univ. L. Rev. 1 (2021)]. Others sharply disagree about whether that is pedagogically appropriate, given the disproportionate effect certain slurs may have on students’ classroom engagement.
The law regarding academic freedom protects both sides in this highly contested pedagogical dispute. Classroom discussions about this dispute, when germane to the class, would also be protected. But academic freedom would be unlikely to protect professors from discipline if they insisted on reading passages from Dambrot and Hardy in Secured Transactions or Family Law. And no one thinks academic freedom would shield a professor who used a derogatory epithet to address a student, or who expected a student to respond when called upon in that way. It is hard to imagine that academic freedom would even protect instructors who wrote in their syllabus that they would be refraining from calling certain students a slur in class only because their universities disallow it.
In the same way, Professor Meriwether should be protected if, at appropriate times in his Political Philosophy class, he leads discussions and expresses his own views about gender identity and religion, even if students or administrators might be offended by some of the opinions voiced during this “robust exchange of ideas.” But for Professor Meriwether to insist on expressing his personal beliefs about gender every time he addresses Ms. Doe, and perhaps on his syllabus as well, is to impose his “personal interest or opinion” regarding gender even when it is not “germane to the subject matter” at hand.
By recognizing faculty’s rights without also recognizing their corresponding responsibilities, the panel’s opinion threatens to undermine the distinctive environment of the classroom—the very thing academic freedom is meant to protect. If academic freedom were untethered from pedagogical concerns, as the Meriwether panel envisions, the consequences would be dire indeed. Professors could hijack their classes, regardless of the ostensible subject matter assigned by the university, to proselytize for any agenda. They could advance opinions unmoored from the lesson plan or their own scholarly expertise and could speak in ways that ostracize or demean certain of their students. Armed with the First Amendment protection the panel opinion provides, professors could not only express contrarian views, but enact them in class. Instead of discussing race or sex segregation, they could enact it by seating students separately by sex, as some religions require. Instead of discussing economic inequality, they could create class-based seating charts. They could favor some students at the expense of others in prejudicial ways. As law professors, amici each lead difficult conversations about controversial ideas in our classes. That is their job. But the First Amendment would no longer protect professors were they to enact in class many of these ideas. This is what Professor Meriwether has done by insisting on certain modes of address. The panel opinion errs in treating Professor Meriwether’s gendering of Ms. Doe as if it were a discussion of gender. It is not.
Even if the gendering, or misgendering, of students were treated as expressions of views about gender, they would still be expressions of a professor’s personal views, repeated in every class he taught. If this is protected, then how are universities to stop faculty members who insist on voicing equally sincere and
deeply held views, say, about the President, day in and day out, in all their classes? Professors could use their platform to proselytize or indoctrinate, promoting or attacking political or religious beliefs. And faculties would be unable to penalize those whose teaching choices fail to live up to recognized disciplinary standards.Amici recognize that some today believe that this is exactly what professors do: rant about their personal political beliefs to indoctrinate their students. That is not amici’s general experience of the academy. But insofar as that does happen in individual instances, it finds no protection in academic freedom—as the American Association of University Professors has itself made clear. [American Association of University Professors, Freedom in the Classroom (2007)].
An even more dire result of the panel’s opinion, however, would be a breakdown in the atmosphere of collegiality and mutual respect that is fundamental to—indeed, makes possible—the robust exchange of ideas that makes university classrooms such special places within our democracy.
If professors may refer to students as they wish, the potential consequences are easy to imagine. Professors could, for example, choose to refer to students by nicknames or anglicized versions of some last names for ease of pronunciation. Given how challenging it may be to pronounce certain names in our diverse nation, one can understand a desire to make alterations. But mere convenience, cannot justify discriminatory conduct. Nor would a professor ever be justified in calling a student by a demeaning nickname or an expletive. These modes of address are more hazing than teaching. Since they cannot be justified on pedagogical grounds, they should not be protected under the banner of academic freedom.
Referring to someone by their preferred honorific and name establishes a norm of collegiality and civility. The concept of “collegiality” itself stems from “college,” a place of respectful yet unfettered debate. These two elements are necessarily intertwined: a free-ranging debate depends on trusting one’s interlocutors to behave respectfully during the conversation. When a professor refers to a student by the wrong honorific it not only demeans that student; it also models for the rest of the class a sense of disrespect for those who are different from the majority or some otherwise favored group.
Professors owe their students, and their collective enterprise, more respect than that. Academic freedom allows professors to lead and participate in classroom discussions in ways guided by their scholarly and pedagogical expertise. These were not what led Professor Meriwether to treat one student in his classroom differently from the rest. For that reason, his act of misgendering—as opposed to his discussions of gender—should not be protected by academic freedom. This Court should vacate the panel’s opinion to the contrary.
For a full list of signatories go to the brief here.
I agree that misgendering a student is not protected by academic freedom but there is more to this case than that. Professor Meriwether initially refused a request from the transgender student to address her as female, claiming this was contrary to his views about matters of sex and gender, and proposed that he would simply use her name rather than any gendered term. She later rejected this proposal and he then proposed that he would address her as female but include a statement of his views on sex and gender in the syllabus to avoid any misunderstanding. When the administration forbid him to include such a statement, Meriwether brought a lawsuit claiming that his academic freedom was abridged in violation of the First Amendment. The District Court dismissed the case on the grounds that, under the U.S. Supreme Court’s decision in Garcetti, job-related speech has no First Amendment protection whatsoever, even in academic contexts. The Sixth Circuit rightly disagreed and sent the case back for trial with this explanation:
“Meriwether alleges that Shawnee State’s application of its gender-identity policy violated the Free Speech Clause of the First Amendment. The district court rejected this argument and held that a professor’s speech in the classroom is never protected by the First Amendment. We disagree: Under controlling Supreme Court and Sixth Circuit precedent, the First Amendment protects the academic speech of university professors. 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.”
Although the
Although the phrase was around well before his time, Oliver W. Holmes is crdited with revising the legal axiom, “Hard cases make bad law.” Of cpurse, few of today’s “SJWs” probably perceive this as a “hard case,” but I do. It also turmns out that, as usual, we apparently did not recive FULL information in the original post, including the later (unsuccessful) negotiations betweeb prof. and student.
I might add also that at some point the prof. claimed a Christian (i.e., First Amendment) right, which seems to have dropped from the discussion, maybe becuase it was not on solid legal grounds (?).
In any case, I’ll leave it at that until more comments come in over the transom and — I hope — complete reporting and less spin.
As I told InsideHigherEd (https://www.insidehighered.com/news/2021/03/29/court-sides-professor-who-repeatedly-misgendered-trans-student) about this case, I think the court’s idea of academic freedom may go further than what I believe in some elements, but in many ways that’s a very good thing. I’d much rather see an excessively broad concept of academic freedom embraced by the courts rather than the usual very narrow version. Koppelman is simply wrong when he claims that this ruling would abolish hostile environment law and allow bigoted slurs. Trying to reverse a decision that strongly protects academic freedom is a bad idea. Future rulings can fix the excesses of this judge without destroying a strong defense of academic freedom.
Thanks for that clarification, John K. Wilson! I am a kindred spirit in this regard.
Hi John! I’m not sure what you’re envisioning about future rulings that can fix this opinion’s mistakes. Future Sixth Circuit panels will be bound by this, so fixing the problem would require going en banc–which is exactly what we’ve requested here.
As I see it, there are two problems with the panel opinion’s overly broad conception of academic freedom. First, it’s not free; it comes at the expense of the student who has been singled out for different treatment because of her professor’s religious beliefs. And second, it fails to recognize the distinctive nature of the classroom, where professors’ independence–the reason Garcetti shouldn’t apply to them–is conditioned on their staying on topic, not imposing their own beliefs, and making choices for pedagogical/scholarly reasons rather than personal ones. When you lose these limits, I think you’ve stopped talking about academic freedom, as opposed to regular old speech rights.
I agree that there is a difference between academic freedom and free speech but I don’t think John does. In a criticism of my CHE piece about two of my colleagues who took another colleague’s classroom materials out of context on Twitter, Wilson writes:
“Ruth argues, ‘Professors at public colleges and universities in the United States have the First Amendment right to say any number of vicious, unhinged, and/or batshit-crazy things. That does not mean they have the academic freedom to do so.’ Actually, it does mean exactly that . . . Ruth creates a division between “academic freedom” and “the First Amendment” that is wrong.”
The strongest guide for my own understanding of the difference between academic freedom and free speech is Robert Post’s book Democracy, Expertise and Academic Freedom: A First Amendment Jurisprudence for the Modern State. I’ve recommended it to John and hope he will read it someday! 🙂
I have indeed read Robert Post and disagree with him. Academic freedom is the application of free speech to the college context, and the strongest example of that is extramural utterances. In this case, which involves the classroom, there are concerns about conflicting rights and the obligations of professors. But I think those limits are much narrower than Brian Soucek does. He suggests that professors must always be “staying on topic, not imposing their own beliefs, and making choices for pedagogical/scholarly reasons rather than personal ones.” I disagree with all of that. Professors are not required to stay on topic for every second of class, they have broad latitude for “imposing their own beliefs” when they are speaking, and they can make many choices for personal reasons. Professors aren’t allowed to engage in illicit discrimination; the question is whether calling a transgender student by their last name without a gender reference constitutes discrimination. I think it does, but it is a far cry from using targeted slurs.
Having very strong legal protections for academic freedom is very good, even if in a few cases like this it goes too far. I think that future courts will interpret this approach in reasonable ways rather than what Koppelman imagines, and will eventually decide that this is discrimination. The value of having a strong legal precedent supporting academic freedom for everyone outweighs the misapplication of that principle in this particular case. And I think the attacks on this ruling need to be narrowly tailored to the application, and not reject a strong legal standard of academic freedom.
John, I’m afraid these are straw men that you’ve just knocked down.
1. Nobody thinks professors have to stay on topic for every second of class. But if a professor expresses a personal belief (e.g. “build that wall”) in every class–in fact, every time they call on someone–that is beyond the pale. And that’s what Meriwether did–by the panel’s own lights, since they’re the ones saying that his gendering of Doe was an expression of his beliefs.
2. Professors make choices for personal reasons, sure, but those aren’t protected by academic freedom because they are not related to the professors’ expertise. If I tell someone to stop speaking because I find that student’s voice grating, that’s not a protected choice. If I tell them to stop speaking because they are dominating the discussion or going off-topic, I am protected.
3. Our brief assumes the inapplicability of Garcetti to professors’ classroom speech. The question is, what’s the standard that replaces it? The Meriwether panel treats the classroom no differently than the quad. That’s a serious mistake. I’m not aware that academic freedom was endangered by the Sixth Circuit’s previous case law, which struck me as very protective. So unless John on someone can point me to ways it had bad effects on classroom speech, I see no reason for the Meriwether panel’s departure from it.
This issue was ably handled in the AAUP’s 1948 investigation of Evansville College, which dismissed an instructor because his frequent digressions into politics (he was a supporter of Henry Wallace’s ill-fated presidential campaign) were alleged to be propagandistic. The AAUP found otherwise (see “Academic Freedom and Tenure: Evansville College,” AAUP Bulletin, 35 (1949), 91-92). The report noted:
“all experienced teachers realize that it is neither possible nor desirable to exclude rigidly all controversial subjects, or all topics upon which the teacher is not an expert. Many things introduced into the classroom illustrative material or applications, overtones of significance, illuminating obiter dicta—may not be in the bond as far as the subject of the course is concerned, but these and kindred techniques may be of the essence of good teaching. Such techniques are readily distinguishable from calculated, overt “propaganda.” . . .
“In the nature of the case, judgments concerning the handling of controversial material will frequently depend not so much on the what as the how. . . . The total effect of what a teacher says on controversial subjects in the classroom depends a great deal upon the manner, the spirit in which he says it and the emphasis he places upon it. It depends also upon the previous existence of a relationship of confidence and understanding between the teacher and his students.”
“Semantics” is sometimes dismissed as a trivial matter but in this case there are serious consequences to word choices, and not just in the tone of voice used (which can be HIGHLY subjective when heard). For instance, one phrase in Hank’s citation of a 1948 case is probably MUCH more problematic nowadays: “Such techniques are readily distinguishable from calculated, overt “propaganda.”
When an innocent word, phrase, idea, or work of art/literature can be interpreted as a “MICRO-aggression,” then it is NOT so easy to distinguish Free Speech from Propaganda, since so much is now considered “insensitive” or “hate speech” (which has no legal basis. The Supremes have ruled on this 3 times.)
Even “inaccurate speech” (which Trump et al. were so often accused of) could just be a mistake. If a Chemistry prof gives the wrong atomic weight for Cesium and even insists that he/she is correct, should he lose his/her job? Why not just go to a Periodic Table of the Elements or a textbook? If a prof says that the 2020 election was a fraud, bring in newspaper articles and court decisions to refute that misstatement?
What ever happened to “challenge/question authority!”? What ever happened to Justice Brandeis?: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.”
“If academic freedom were untethered from pedagogical concerns, as the Meriwether panel envisions, the consequences would be dire indeed.” What a great brief. Many thanks to the signatories for the careful work done on this. I agree with Koppelman that hostile environment law is at stake here. Were professors able to to use the concept of academic freedom as a shield whenever they dehumanize their students, we’d be in very bad shape. Using the professor’s podium to insist on calling someone who identifies as a woman “sir”, when done intentionally not mistakenly, is an act of dehumanization.
And when the humans “dehumanize” themselves…?
“Hostile environment” can mean almost anything. Without arguing the merits or demerits of this particular case, I have just seen too many instances in which students (and even academic administrators) misconstrue what a prof said or intended. “It is better to let a hundred guilty parties go free than to jail an innocent person.” So it should be with Free Speech and Academic Freedom. As Jesus said, let those.who not sinned throw the first stone.” In this climate, probably EVERYONE has sinned unless you’re a P.C.puris
Otherwise forget about reading HUCKLEBERRY FINN or studying nude paintings in Art History classes. Who would have thought that the word “hood” (urban neighborhood) would have caused the loss of my adjunct Full Professorship at CCNY. (For the detalls, see https://www.academia.edu/23593134/A_Leftist_Critique_of_Political_Correctness_Gone_Amok_Revised_and_Updated: