Fierce debate surrounds campus speech that is harmful toward minority groups — and universities’ attempts to regulate it.1×1. See, e.g., Stephen J. Wermiel, The Ongoing Challenge to Define Free Speech, 43 Hum. Rts., no. 4, 2018, at 1, 4, https://www.americanbar.org/content/dam/aba/administrative/crsj/human-rights-magazine/hr-v43-n4.pdf [https://perma.cc/2HBU-394U]. Particularly, when professors’ speech effects that harm, are professors protected by the First Amendment? Recently, in Meriwether v. Hartop,2×2. 992 F.3d 492 (6th Cir. 2021). the Sixth Circuit held that a public university professor plausibly alleged that his First Amendment rights were infringed when the university disciplined him for refusing to refer to a transgender student with “she/her” pronouns, in violation of the school’s nondiscrimination policy.3×3. See id. at 511–12. The court’s holding is circumscribed. Ruling on a motion to dismiss, the court concluded the professor plausibly alleged that the university policy violated his free speech rights — not that such a violation had occurred. Id. at 503. By failing to recognize the significance of the university’s interest in preventing discrimination, the court skewed its analysis in favor of the professor’s interests. However, the university’s interest in ensuring a welcoming classroom environment is well supported and serves, rather than undermines, academic freedom.
In 2016, Shawnee State University informed its faculty that its nondiscrimination policy required all professors to refer to students using pronouns that “reflect a student’s self-asserted gender identity.”4×4. Id. at 498. But in 2018, when a transgender student, Jane Doe,5×5. Doe is a pseudonym used throughout the litigation. See Order at 8, Meriwether v. Trs. of Shawnee State Univ., No. 18-cv-753 (S.D. Ohio Jan. 30, 2019). told her philosophy professor, Nicholas Meriwether, to refer to her with “she/her” pronouns, Meriwether would not.6×6. Meriwether, 992 F.3d at 499. According to Meriwether, compliance with the school’s pronoun policy forced him to violate his religious belief that gender is fixed at conception.7×7. Id. at 498–99. For the rest of the semester, Meriwether addressed all other students with the honorifics “Ms.” or “Mr.,” which he did to “foster an atmosphere of seriousness and mutual respect,” but referred to Doe by only her last name.8×8. Id. at 499. Meriwether proposed this “compromise,” id., as “an accommodation . . . given his sincerely held beliefs,” but school officials said it violated the nondiscrimination policy, id. at 500. Officials likewise vetoed his request to refer to Doe with “she/her” pronouns but to note in his syllabus that he was doing so “under compulsion” despite his religious beliefs. Id. at 500. In response, Doe complained she suffered disparate treatment — that referring to Doe alone by last name only was not “in line with [Meriwether’s] practice of addressing other female members in the class.”9×9. Meriwether v. Trs. of Shawnee State Univ., No. 18-cv-753, 2019 WL 4222598, at *5 (S.D. Ohio Sept. 5, 2019). The school’s Title IX investigation concluded that Meriwether’s refusal to recognize Doe’s gender iden-tity created a discriminatory and hostile learning environment.10×10. Meriwether, 992 F.3d at 500–01. Meriwether was issued a written warning instructing him to use trans students’ requested pronouns “to avoid further corrective actions.”11×11. Id. at 501.
After exhausting the faculty union’s grievance process, Meriwether filed suit in the Southern District of Ohio, alleging the university’s disciplinary action violated his First Amendment free speech and free exercise rights, among other claims.12×12. Meriwether, 2019 WL 4222598, at *7. Meriwether also brought claims under the Ohio Constitution, his contract with the university, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Id. The district court rejected his constitutional claims on the merits, id. at *28–29, and dismissed his state law claims on jurisdictional grounds, id. at *30. The district court dismissed both claims.13×13. Id. at *30. Turning first to free speech, the court rejected Meriwether’s argument that professors’ speech comprises a carveout from the general rule14×14. Id. at *10. articulated in Garcetti v. Ceballos.15×15. 547 U.S. 410 (2006). The Garcetti Court held that public employees’ speech is susceptible to employer discipline unless the speech addressed “matters of public concern” and was made “as a citizen”16×16. Id. at 416 (quoting Connick v. Myers, 461 U.S. 138, 147 (1983)). — that is, was not made pursuant to an employee’s “official duties.”17×17. Id. at 421. Applying Garcetti, the district court concluded Meriwether’s speech was made pursuant to his official duties and not on a matter of public concern.18×18. Meriwether, 2019 WL 4222598, at *12, *14. His speech was related to gender identity, but it did not actually influence or invite public debate; Meriwether addressed only one student only within the classroom, and it was unlikely someone hearing his pronoun use would perceive he was expressing views about gender identity.19×19. Id. at *14–15. As to free exercise, the court held Meriwether failed to allege facts showing that the university’s nondiscrimination policies “were anything but neutral, generally applicable policies without a system of ad hoc exemptions,” which do not violate the First Amendment.20×20. Id. at *25.
The Sixth Circuit reversed in relevant part.21×21. Meriwether, 992 F.3d at 518. Writing for the panel, Judge Thapar22×22. Judge Thapar was joined by Judges McKeague and Larsen. first addressed the unsettled threshold question: Does Garcetti, which held that public employees’ speech is not protected by the First Amendment when made pursuant to their official duties,23×23. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). apply to academic speech?24×24. Meriwether, 992 F.3d at 504. The Supreme Court expressly left unanswered whether Garcetti’s holding applied in the university context. Garcetti, 547 U.S. at 425. The panel concluded that it does not.25×25. Meriwether, 992 F.3d at 505. Reading Supreme Court precedent to recognize both the “essentiality of freedom in the community of American universities”26×26. Id. at 504 (quoting Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (plurality opinion)). and universities’ crucial role in exposing future leaders to ranging viewpoints and ideas, the court determined that the First Amendment safeguards these values.27×27. Id. at 504–05. These precedents, according to the court, established that public university professors “retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship.”28×28. Id. at 505. The Sixth Circuit joined the Fourth, Fifth, and Ninth Circuits in recognizing some sort of academic freedom exception to Garcetti. Id. (citing Adams v. Trs. of the Univ. of N.C.–Wilmington, 640 F.3d 550, 562 (4th Cir. 2011); Buchanan v. Alexander, 919 F.3d 847, 852–53 (5th Cir. 2019); Demers v. Austin, 746 F.3d 402, 411 (9th Cir. 2014)).
Having concluded that Garcetti did not bar Meriwether’s free speech claim, the court applied the two-pronged Pickering-Connick29×29. Pickering v. Bd. of Educ., 391 U.S. 563 (1968); Connick v. Myers, 461 U.S. 138 (1983). test, asking first whether Meriwether’s speech involved a matter of public concern and second whether his interest in speaking outweighed the school’s interest in regulating that speech.30×30. Meriwether, 992 F.3d at 507–08. In the panel’s view, Meriwether’s free speech claim cleared the first Pickering-Connick prong. Emphasizing that pronoun usage is a “hot issue,” the court concluded that Meriwether’s speech “waded into a matter of public concern.”31×31. Id. at 509. The court then balanced the interests of the professor “as a citizen, in commenting upon matters of public concern” against the interests of the government employer “in promoting the efficiency of the public services it performs through its employees.”32×32. Id. (quoting Pickering, 391 U.S. at 568). The Sixth Circuit stressed Meriwether’s academic freedom interest and the principles bolstering Meriwether’s claim, such as the importance of exposure to and protection of “contrarian views” under the First Amendment, particularly in the classroom.33×33. Id. at 510. The court briefly considered and dismissed the school’s interest in “stopping discrimination against transgender students.”34×34. Id. Judge Thapar reasoned that, even assuming such an interest existed, it was not shown to be implicated in this case. On the facts of his complaint, Meriwether neither created a hostile learning environment nor impeded the operations of the school, so the school’s regulation of Meriwether’s speech would mostly serve to prohibit merely “offensive” speech.35×35. Id. at 511. For the same reasons, the university’s interest in complying with Title IX was not implicated by Meriwether’s violation of the pronoun policy.36×36. Id.
Finally, the panel held that Meriwether plausibly alleged the university’s application of its nondiscrimination policy was not religiously neutral, in violation of his free exercise rights.37×37. Id. at 512. The court noted that school adjudicators’ comments exhibited hostility toward Meriwether’s religious beliefs and that irregularities in the school’s adjudication process permitted an inference of nonneutrality.38×38. Id. (citing Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1731 (2018)). Likewise, the school’s changing reasons for disciplining Meriwether39×39. As alleged, the university first said it was disciplining Meriwether for creating a hostile learning environment, before shifting to allegations of disparate treatment. Id. at 514–15. and changing policy surrounding accommodations40×40. As alleged, school officials initially allowed Meriwether to refer to Doe by only her last name while referring to classmates with titles and pronouns, but during litigation “the university claim[ed] that its policy d[id] not permit any religious accommodations.” Id. at 515. permitted an inference that the school had targeted his religious beliefs.41×41. Id. The panel also explained that the school’s proposal that he stop using pronouns altogether, to avoid an expression violating his religious beliefs, constituted at least indirect coercion and compelled silence.42×42. Id. at 517. Applying strict scrutiny to the university’s actions, the court held Meriwether’s free exercise claim could proceed.43×43. Id. In addition, the panel affirmed the dismissal of Meriwether’s claim under the Due Process Clause, but vacated the dismissal of his state law claims. Id. at 518.
As commentators have noted, the court’s predicate conclusions that there is an academic freedom exception to Garcetti and that Meriwether was speaking on a matter of public concern are debatable.44×44. See Karen Levit, Anti-trans Legislation and Rulings Are Part of a Bigger Picture, Above the L. (Apr. 16, 2021, 10:47 AM), https://abovethelaw.com/2021/04/anti-trans-legislation-and-rulings-are-part-of-a-bigger-picture [https://perma.cc/4UJE-GH8U] (“[T]he Sixth Circuit contorted itself into finding that how one refers to a student in class is a matter of academic freedom that supercedes the limitations of Garcetti.”); Steve Sanders, Pronouns, “Academic Freedom,” and Conservative Judicial Activism, Am. Const. Soc’y: Expert F. (Apr. 12, 2021), https://www.acslaw.org/expertforum/pronouns-academic-freedom-and-conservative-judicial-activism [https://perma.cc/S7CF-PJMH]; see also Brief of Defendants-Appellees at 14–33, Meriwether, 992 F.3d 492 (No. 20-3289). But even if one were to accept the panel’s framing of the issue, the court gave short shrift to its Pickering balancing by failing to properly account for the university’s strong interest in preventing discrimination. The panel’s failure to precisely define the school’s interest doomed the university under the fact-specific interest balancing Pickering-Connick requires, making the court’s conclusion that “the Pickering balance strongly favors Meriwether”45×45. Meriwether, 992 F.3d at 511. practically inevitable. But universities do have an interest in preventing discrimination, as courts have recognized. Further, ensuring students receive equal opportunities in “hostile-free” learning environments46×46. Bonnell v. Lorenzo, 241 F.3d 800, 822 (6th Cir. 2001). serves the academic freedom principles the panel underscored.
In balancing the interests of the university and professor as required at the second step of the Pickering-Connick test, the court first defined each party’s interests at the conceptual level — the “interest-definition” stage — and then “[t]urn[ed] to the facts”47×47. Meriwether, 992 F.3d at 510. to balance those interests as they were implicated by the facts of this case — the “interest-balancing” stage. At the interest-definition stage, in a strikingly cramped, one-paragraph analysis of the university’s “side of the ledger,”48×48. Id. the court failed to adequately consider the university’s interest in “ensur[ing] transgender students do not suffer discrimination.”49×49. Brief of Defendants-Appellees, supra note 44, at 35. Judge Thapar wrote that the university “relie[d] on” a case it cited in its brief, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.,50×50. 884 F.3d 560 (6th Cir. 2018), aff’d sub nom. Bostock v. Clayton County, 140 S. Ct. 1731 (2020). to support the proposition that it has a compelling nondiscrimination interest.51×51. Meriwether, 992 F.3d at 510. Subtly, Judge Thapar dismissed the self-evident nature — or at least the clear plausibility — of a university’s interest in stopping discrimination against its students. He framed the university’s nondiscrimination interest as dubious, suggesting that it required direct support in case law and that Harris offered the only possible support for such an interest.52×52. See id.
The panel then rejected Harris as irrelevant because it “did not hold — and indeed, consistent with the First Amendment, could not have held — that the government always has a compelling interest in regulating employees’ speech on matters of public concern.”53×53. Id. However, that Harris does not support the proposition that the government “always” has a compelling interest in regulating employees’ speech “on matters of public concern” is immaterial. The university needed only to, and purported only to, assert a compelling interest in stopping discrimination against trans students, which it asserted outweighed the professor’s interests.54×54. See Brief of Defendants-Appellees, supra note 44, at 34. Yet in shifting its analytical focus to the notion that the government does not “always” have a compelling interest in regulating employee speech, the panel failed to even allow for the possibility that the university had a compelling nondiscrimination interest in this specific situation. In framing Harris first as the only possible support for the university’s nondiscrimination interest and then as irrelevant for failing to support an unasserted proposition, the panel undermined the validity of the university’s nondiscrimination interest.
The court’s skepticism toward the school’s nondiscrimination interest sharply contrasted with its sympathy toward the professor’s interests. In its three-paragraph analysis of Meriwether’s interests,55×55. Meriwether, 992 F.3d at 509–10. the court gave Meriwether the benefit of the assumption — undefended and unacknowledged — that his desire to not use “she/her” pronouns implicated academic freedom.56×56. See id.; see also Sanders, supra note 44. Judge Thapar stressed “the robust tradition of academic freedom in our nation’s post-secondary schools”57×57. Meriwether, 992 F.3d at 509 (quoting Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 680 (6th Cir. 2001)). and portrayed that tradition as powerful enough to “alone offer a strong reason to protect” Meriwether’s speech.58×58. Id. Yet he did not mention any comparable institutional tradition of nondiscrimination for universities.
Despite the court’s framing, universities do have a strong interest in preventing discrimination against students.59×59. Indeed, one law professor described Meriwether as an “easy case” because “[r]ules against discrimination obviously promote the delivery of educational services.” Andrew Koppelman, Opinion, Free Speech Gone Wild: The Meriwether Case, The Hill (Aug. 17, 2020, 11:30 AM), https://thehill.com/opinion/judiciary/512306-free-speech-gone-wild-the-meriwether-case [https://perma.cc/CW6G-XQC9]; see also Vikram David Amar & Alan E. Brownstein, Analyzing the Recent Sixth Circuit’s Extension of “Academic Freedom” Protection to a College Teacher Who Refused to Respect Student Gender-Pronoun Preferences, Justia: Verdict (Apr. 16, 2021), https://verdict.justia.com/2021/04/16/analyzing-the-recent-sixth-circuits-extension-of-academic-freedom-protection-to-a-college-teacher-who-refused-to-respect-student-gender-pronoun-preferences [https://perma.cc/HK6M-AS7M]. In Bonnell v. Lorenzo,60×60. 241 F.3d 800 (6th Cir. 2001). the Sixth Circuit explained that a university’s “interest in maintaining a hostile-free learning environment, particularly [but not only] as it relates to its Title IX funding, is well recognized.”61×61. Id. at 822. The Bonnell panel concluded a Michigan college’s interest in disciplining a professor for his obscene and harassing language outweighed the professor’s academic freedom interest and free speech rights under Pickering.62×62. Id. at 824. The Supreme Court also has recognized that nondiscrimination policies may ensure that “leadership, educational, and social opportunities . . . are available to all students” and may “encourage tolerance, cooperation, and learning among students.”63×63. Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the L. v. Martinez, 561 U.S. 661, 688–89 (2010). The Court held that a university’s “all-comers policy,” requiring that Registered Student Organizations accept all interested students as members to comply with the school’s nondiscrimination policy, did not violate the Christian Legal Society’s free speech rights. Id. at 669. The Court thus validated that such institutional interests may support reasonable restrictions on free speech rights.64×64. See id. at 669–70. Finally, the Pickering-Connick framework itself provides an opportunity to recognize the role of nondiscrimination policies in “promoting the efficiency of the public services [that a public university] performs through its employees.”65×65. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968); see also Brief of Intervenors-Appellees at 17, Meriwether, 992 F.3d 492 (No. 20-3289). Indeed, the public services and “mission” of universities is “ensuring that all students, including transgender students, have equal access to a quality education.”66×66. Brief of Intervenors-Appellees, supra note 65, at 9; see also Bonnell, 241 F.3d at 822 (concluding that college’s interests in enforcing sexual harassment policy and “protecting a complaining student from retaliation . . . are all interests which we find to be significant in ‘promot[ing] efficiency and integrity in the discharge of [the College’s] official duties’” (quoting Connick v. Myers, 461 U.S. 138, 150–51 (1983) (alterations in original))).
The panel similarly ignored that the academic freedom principles it valorized are themselves served when students experience “hostile-free” learning environments. If academic freedom encompasses that “free exchange of ideas in the college classroom”67×67. Meriwether, 992 F.3d at 507. on which “[o]ur nation’s future ‘depends,’”68×68. Id. at 505 (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)). as the panel described, then academic freedom depends on more than professors’ ability to speak freely on matters of public concern.69×69. But see id. at 504–05 (considering only professors’ ability to speak freely). Academic freedom depends equally, if not more, on students’ sense of safety and dignity in the classroom that enables them to speak freely during classroom discussions.70×70. For Doe, that required that she receive equal treatment via the use of an honorific, have her gender identity validated, and not be forcibly outed to her classmates. See Brief of Intervenors-Appellees, supra note 65, at 5–6. As courts have long recognized, universities possess an institutional academic freedom interest in “provid[ing] that atmosphere which is most conducive to speculation, experiment[ation] and creation.”71×71. Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring); see also id. at 250 (plurality opinion) (recognizing academic freedom as a right belonging to both individuals and universities); Parate v. Isibor, 868 F.2d 821, 826 (6th Cir. 1989) (same). Accordingly, nondiscrimination and academic freedom are not diametrically opposed interests as the panel suggested; the university is invested in both and understands that nondiscrimination policies benefit academic freedom.
Although the court would respond that Doe at least “was an active participant in class and ultimately received a high grade,”72×72. Meriwether, 992 F.3d at 511. But see Brief of Intervenors-Appellees, supra note 65, at 6 (explaining that Doe participated because “in-class participation counted for a portion of [her] final grade”). that formulation not only ignored the power differentials at play73×73. See, e.g., Abbie E. Goldberg et al., Transgender Graduate Students’ Experiences in Higher Education: A Mixed-Methods Exploratory Study, 12 J. Diversity Higher Educ. 38, 39 (2019). and the harm Doe experienced74×74. See Mark Joseph Stern, What It Feels Like When a Federal Court Gives a Professor the Right to Misgender You, Slate (Apr. 13, 2021, 4:02 PM), https://slate.com/news-and-politics/2021/04/transgender-student-misgender-amul-thapar-jane-doe.html [https://perma.cc/D8PJ-8WMZ]. The panel downplayed the fact that Meriwether even misgendered Doe, emphasizing he “accidentally” used “he/him” pronouns for Doe only twice. Meriwether, 992 F.3d at 499–500. But misgendering can be unintentional. KC Clements, What Does It Mean to Misgender Someone?, Healthline (Sept. 18, 2018), https://www.healthline.com/health/transgender/misgendering [https://perma.cc/GG6C-2TK5]. but also exhibited a double standard. The court appreciated that the professor’s inability to freely express his beliefs was consequential even if he was not wholly silenced in the classroom, yet it did not acknowledge that although the student participated she may have still felt unsafe or unwelcomed such that she did not contribute as meaningfully as she otherwise could have. The court’s “academic freedom” framing obligated it to a good faith, full consideration of all the academic freedom interests involved — not solely those of Meriwether. As the Sixth Circuit has recognized, “[t]his is particularly so when one considers the unique context [of] . . . a classroom where a college professor is speaking to a captive audience of students.”75×75. Bonnell v. Lorenzo, 241 F.3d 800, 820 (6th Cir. 2001).
The court’s minimization of the university’s nondiscrimination interest matters, partly because it made the outcome of the court’s Pickering balancing inevitable.76×76. The panel’s interest balancing made no mention of the university’s interest in ensuring nondiscrimination apart from Title IX compliance — an unsurprising omission given its lack of precision at the interest-definition stage. See Meriwether, 992 F.3d at 511. It also led the court to likewise minimize the psychological and dignitary harm that Doe experienced, which suppressed her participation and in turn undermined the free exchange of ideas in the classroom.77×77. See Brief of Intervenors-Appellees, supra note 65, at 5–6; cf. Arroyo Gonzalez v. Rossello Nevares, 305 F. Supp. 3d 327, 333 (D.P.R. 2018) (stating that a policy that chills trans individuals’ speech “hurts society as a whole by depriving all from the voices of the transgender community”). The stakes for academic freedom are high, and they extend beyond Meriwether. More classrooms than just Doe’s are losing out on the voices and perspectives of trans students — and in some cases, trans students’ experiences of harassment push them out of postsecondary education altogether.78×78. See Sandy E. James et al., The Report of the 2015 U.S. Transgender Survey 136 (2016), https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf [https://perma.cc/G9LU-LLL9] (“Of respondents who were out or perceived as transgender and who experienced some form of harassment, 16% left college or vocational school because the harassment was so bad.”). To ensure that expression of varying and competing viewpoints characterizes campuses, it is crucial to appreciate the complementary relationship between university anti-discrimination policies and academic freedom goals. Indeed, when trans students are excluded, it is academic freedom that suffers, not free speech that wins.