Fierce debate surrounds campus speech that is harmful toward minority groups — and universities’ attempts to regulate it.1 Particularly, when professors’ speech effects that harm, are professors protected by the First Amendment? Recently, in Meriwether v. Hartop,2 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 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 But in 2018, when a transgender student, Jane Doe,5 told her philosophy professor, Nicholas Meriwether, to refer to her with “she/her” pronouns, Meriwether would not.6 According to Meriwether, compliance with the school’s pronoun policy forced him to violate his religious belief that gender is fixed at conception.7 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 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 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 Meriwether was issued a written warning instructing him to use trans students’ requested pronouns “to avoid further corrective actions.”11
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 The district court dismissed both claims.13 Turning first to free speech, the court rejected Meriwether’s argument that professors’ speech comprises a carveout from the general rule14 articulated in Garcetti v. Ceballos.15 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 — that is, was not made pursuant to an employee’s “official duties.”17 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 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 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
The Sixth Circuit reversed in relevant part.21 Writing for the panel, Judge Thapar22 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 apply to academic speech?24 The panel concluded that it does not.25 Reading Supreme Court precedent to recognize both the “essentiality of freedom in the community of American universities”26 and universities’ crucial role in exposing future leaders to ranging viewpoints and ideas, the court determined that the First Amendment safeguards these values.27 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
Having concluded that Garcetti did not bar Meriwether’s free speech claim, the court applied the two-pronged Pickering-Connick29 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 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 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 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 The court briefly considered and dismissed the school’s interest in “stopping discrimination against transgender students.”34 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 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
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 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 Likewise, the school’s changing reasons for disciplining Meriwether39 and changing policy surrounding accommodations40 permitted an inference that the school had targeted his religious beliefs.41 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 Applying strict scrutiny to the university’s actions, the court held Meriwether’s free exercise claim could proceed.43
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 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 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 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 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 the court failed to adequately consider the university’s interest in “ensur[ing] transgender students do not suffer discrimination.”49 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 to support the proposition that it has a compelling nondiscrimination interest.51 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
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 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 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 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 Judge Thapar stressed “the robust tradition of academic freedom in our nation’s post-secondary schools”57 and portrayed that tradition as powerful enough to “alone offer[] a strong reason to protect” Meriwether’s speech.58 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 In Bonnell v. Lorenzo,60 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 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 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 The Court thus validated that such institutional interests may support reasonable restrictions on free speech rights.64 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 Indeed, the public services and “mission” of universities is “ensuring that all students, including transgender students, have equal access to a quality education.”66
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 on which “[o]ur nation’s future ‘depends,’”68 as the panel described, then academic freedom depends on more than professors’ ability to speak freely on matters of public concern.69 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 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 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 that formulation not only ignored the power differentials at play73 and the harm Doe experienced74 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
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 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 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 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.