Abuse as a constitutional right: The Meriwether case

Do teachers have the right to address their students with racial slurs? Is hostile environment harassment law unconstitutional? Those are among the alarming implications of a recent federal court decision.

Prof. Nicholas Meriwether of Shawnee State University, Ohio, refused to address a transgender student by the student’s preferred pronouns. Instead, while addressing all other students as “Mr.” or “Ms.,” he referred to the student by last name only. When he was disciplined for discrimination, he sued. He argued that, because of his religious and philosophical beliefs, he does not regard this student as female. Teachers “should not be compelled to say and teach things they don’t believe or risk being fired or disciplined.”

The U.S. Court of Appeals for the Sixth Circuit agrees with him. In Meriwether v. Hartop, it held that Shawnee State “punished a professor for his speech on a hotly contested issue.” 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.” He was speaking on a matter of public concern, because “titles and pronouns carry a message.” His refusal to use the student’s preferred pronoun “reflected his conviction that one’s sex cannot be changed, a topic which has been in the news on many occasions.” In so doing, “he advanced a viewpoint on gender identity.” 

The court does not appear to have thought through the meaning of these sweeping statements in future cases.

The court denounces the university for its refusal to accommodate Meriwether’s beliefs.  (It also enumerates other allegations of bias, not relevant to his free speech claim.)  “Meriwether proposed a compromise: He would call on Doe using Doe’s last name alone. That seemed like a win-win. Meriwether would not have to violate his religious beliefs, and Doe would not be referred to using pronouns Doe finds offensive.” The university at first agreed, then changed its position. It is easy to see why. Title IX prohibits “discrimination under any education program or activity” based on sex. In his complaint, Meriwether explains that he “refers to students in this fashion to foster an atmosphere of seriousness and mutual respect that is befitting the college classroom.”  By his own reasoning, that seriousness and respect would not be available to the transgender student. She would be treated worse than any other student. 

The logic of the court’s decision casts doubt on Title IX itself. Racism and sexism are ideas. Those who proclaim those ideas – and direct them at specific students – are engaged in speech. The court says that “the First Amendment interests are especially strong here because Meriwether’s speech also relates to his core religious and philosophical beliefs.”

American racism has often reached for religious arguments. Biblical justifications were offered for slavery and segregation. Racist religions are more marginal today, but “Christian identity” and “Creativity” have adherents in many states.

Suppose a professor believed that African Americans are beings of an inferior order, who don’t deserve the honorific of “Mr.” or ‘Ms.” – demeaning treatment that was once widespread. Suppose he thought it appropriate to address only the Black students by their first names, to signify their appropriately subordinated status? How would his case differ from Meriwether’s? The logic goes further. A professor who calls students the N-word has advanced a viewpoint on a hotly contested issue, a matter of public concern, one that relates to core philosophical beliefs. Titles and pronouns carry a message.  The decision doesn’t address these possibilities, because it never considers that there might be religious and philosophical beliefs with which it does not sympathize.

In the last pages of the opinion, you learn a crucial fact, one that if revealed earlier might have dampened the outrage that the court aims to provoke in the reader. The university made a counterproposal, entirely respectful of Meriwether’s compunctions, which he rejected. He could refer to all students by first or last names only, without using gendered titles for any of them. That would have treated all students equally, and it would not have required him to say anything he did not believe. It was an admirable attempt to reconcile an intractable cultural conflict.

The court responds dismissively: “such a system would be impossible to comply with, especially in a class heavy on discussion and debate. No ‘Mr.’ or ‘Ms.’ No ‘yes sir’ or ‘no ma’am.’ No ‘he said’ or ‘she said.’” (The court implies that Meriwether would not be permitted ever to use any gendered pronoun to refer to any student, but that misrepresents what he was told: “Every student needs to be treated the same in all of your classes.” That is a pretty good statement of the limits of faculty free speech.)  

I’m a professor myself. There’s nothing impossible here. The court declares that “when Meriwether slipped up, which he inevitably would (especially after using these titles for 25 years), he could face discipline.” This is unfair to Meriwether. There is no reason to think he lacks the competence to remember the gender identity of a single student.

Let’s hope that the court does not intend the disastrous entailments of its decision. It clearly sympathizes with Meriwether, doesn’t sympathize with transgender students and is straining to reach a result it likes. Anticipating the consequences of one’s statements of the law is, however, what we are paying judges to do. The court worries about discrimination against religion. Religious differences must be taken seriously, and should be accommodated where reasonably possible. But “religion always wins” rules will certainly make matters worse.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Gay Rights vs. Religious Liberty? The Unnecessary Conflict” (Oxford University Press, 2020).  Follow him on Twitter @AndrewKoppelman.