Ruling in Shawnee State “Preferred Pronouns” Case: Read It For Yourself
The Sixth Circuit ruled 3-0 that the Shawnee State “Preferred Pronouns” case is covered by the First Amendment and a professor cannot be compelled to use a students preferred pronouns.
A public university cannot compel the “academic speech” of its professors, the Sixth Circuit ruled Friday in a decision that reinstated First Amendment claims brought by a Christian professor who ran afoul of his employer’s gender identity policy.
Nicholas Meriwether, an evangelical Christian who has taught at Shawnee State University since 1996, was disciplined in 2018 when he refused to call a transgender student by her preferred pronouns. Meriwether, who taught the anonymous student in a political philosophy class, typically uses the Socratic method of teaching in which “Mr.” and “Ms.” are used to call on students.
Following the incident, the student confronted Meriwether and demanded she be called by her preferred pronouns, at which point the professor informed her that his religious beliefs would not allow it. The student promised to get Meriwether fired, and after an investigation, the professor was given a written warning based on the school’s finding that he had created a hostile environment for the student.
Meriwether was concerned further violations of the policy could get him fired, so he filed a First Amendment suit in federal court. The case was referred to a magistrate judge after the student and a group called Sexuality and Gender Acceptance intervened, and the suit was ultimately dismissed.
The professor appealed to the Sixth Circuit, which heard arguments last November.
Although the U.S. Supreme Court held in the 2006 case Garcetti v. Ceballos that comments made by government employees in the course of their normal duties are not protected by the First Amendment, the panel in Meriwether’s case declined to apply that holding to professors.
“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.”
Read it for yourself here:
Preferred Pronouns
Since I’m free to make a comment that is sort of tangential nobody can stop me. I’ll admit I didn’t read the entire ruling, I skimmed some of it. But this ruling has everything I find weak and frustrating about pro free speech talk even though I’m pro free speech.
So much of the ruling elides the issue in the case which is more dudes religion VS students rights. The judges go on at several points about how important it is to say whatever you want to promote learning which is true and good but not the actual issue. Should a gov employee have to respect a students statement to further the goal of non discrimination. That is the issue. Full disclosure, I’m a gov employee and I do have to respect citizens and not discriminate. I’m fine with that. But judges should put aside the self righteous preaching and directly address the issue of who’s interest they are favoring not distract with peons to why open discussion is good.Report
Did the plaintiff argue that a government employee has an obligation to promote the diversity goals of the parent agency/institution?Report
Furthering the goals of a the place you work is part of every bodies job.I’d add that i think being a teacher, even at a uni, brings a significant duty of care to treat all your students well. There are certainly ways prof’s dont’ do that especially at grad levels. But that also sucks and pushes a lot of people out of academia.Report
Sure, but was that argued?Report
What if respecting every silly affectation is actually counter to the goal of educating people? They’re there to learn not be fellatiated.
Maybe it’s because I went to giant state school but this idea that the professors owe some immense duty of love and affection to their students strikes me as totally bizarre. You do the work. You get the grade. If you can’t handle the professor’s personality drop the course and move on with your life. If you can’t handle any professors personality then drop out of school, you shouldn’t be there.Report
As with all the wedding crap, it boils down to whether or not a person has the right to be an ass to another.
Think of it this way, if the Prof had a habit calling male black students “Boy”, would we even be having this conversation?
Once a student asks to be referred to by a given pronoun, the prof should make a good faith effort to remember that (with latitude given if the student is not presenting clearly as such, FSM knows I’d mess it up a bunch of times if the visual cues were off).
Having the prof refuse and make a religious claim is, well, it’s an a$$hole move, especially since I’m pretty sure there is no religious objection regarding pronouns.
Should the prof face charges? Hell no. Should the school be able to discipline him? Within the bounds of their existing policy and tenure agreements, hell yeah.Report
I don’t buy it. The lawsuit was a measure to prevent future discipline, which he probably had little choice but to file given that he had already been officially punished.
Your comparison doesn’t hold water. One is refraining from doing something, the other is requiring an accommodation. And yes, the law sometimes does require that but it’s incumbent on proponents of such a law to pass one that deals with the hard issues, including navigating 1st Amendment concerns at public universities. That has not happened.Report
Just try addressing a Ph.D holder as anything other than “Dr.” and see whose silly affectation needs fellating.Report
We covered this last year with Dr. Jill Biden.Report
On the other end, for a decade or more I held a position that everyone assumed a PhD was a prerequisite for. When addressed as Dr. Cain, I always corrected people. Outside of honorary degrees, PhD implies some degree of discipline and a tolerance for academic BS that I could never muster, despite multiple attempts, and I acknowledge that.Report
They are both literally referring to someone in a disparaging way. There is almost no difference between the examples at all, except one is disrespect based in race the other disrespect based in gender.
But okay, let’s make the examples identical: How would you feel if there was a fairly butch-looking _cis_ woman, let’s make her a lesbian just for fun, and the professor constantly misgendered her as ‘him’, on purpose?
Is that the same thing? Why or why not?Report
Did you read the facts of the case? Because again, that is not an analogous hypothetical.Report
Fine, how would you feel if he addressed the other students as Mr and Ms but the lesbian using only her last name?
And he made it clear in the class discussion that he sees her as a man, but instead of addressing her that way, he will compromise and address her in a ‘neutral’, aka, disrespectful last-name only, manner?Report
OK, I just read those 1st few pages, and while I still think the Prof chose an odd hill to die on, the student and the school were clearly looking to mess with the Prof over this.Report
To Ken’s point elsewhere in these comments, there is obviously a huge ‘first world problems’ aspect to this. But as long as we have over-inflated, highly ideological compliance bureaucracies running state colleges we can expect this sort of litigation.Report
History does not remember the sportswriters who insisted on referring to Muhammad Ali as “Cassius Clay” kindly. I don’t see how this is different.Report
worth asking whether those sportswriters’ employers were sued over the matter, or whether they ought to have been.Report
Respect every silly affectation? Who is arguing that. Whether any person’s pronouns are a freshmen affectation or a vital part of their self definition relating to their gender is beyond what you or i can know. Trans people should be respected. Teachers don’t have to love their students which isnt’ being argued. However they do have a responsibility for some caring actions by virtue of their profession. A mechanic can tell a customer to F off. A teacher….no, they can’t do that. I’m a gov employee and have had to deal with nazi or racist MF’rs. Welp i got to suck it up by being respectful and professional to them. Don’t have to like them but gotta give them the same level of service and not hold their shitty views against them. If i can’t do that then i gotta move on.
Duty of care doesn’t mean you have to let someone move in with you. But it does mean you have some responsibility to make a persons well being a high priority.Report
We’re talking adults teaching other adults here. These are professors and students not customers and service providers. It’s a fundamentally different relationship where one has authority and knowledge, the other is there to learn. Beyond ‘not being abusive’ I don’t think there’s much more owed.
And I get it, a lot of people think not using a pronoun is abusive. Others see it as treating one person the same as they treat everyone else.Report
‘Not using a pronoun’…what the hell are you talking about?
You realize everyone uses pronouns, right?Report
Per the decision he offered an accommodation of calling the individual by name (i.e. dropping the Mr./Ms. when referring to her which was the original complaint). I suppose it’s more accurate to describe the case as being about honorifics rather than pronouns.Report
He wanted to treat her differently because of his feelings about her gender identity. This is in violation of school policy.Report
Policy of a state institution controls over the 1st Amendment? And the accommodation wasn’t consistent with respecting the rights for both parties?
I concede it isn’t an easy issue but the first step for finding a good path is accepting that.Report
There was quite a bit of commentary back when this case was argued by folks listening to it (pandemic so it was streamed) about how poorly the counsel for Shawnee State was at the podium. Really bad, by all accounts from across the spectrum. The other item that was brought up in arguments was the student taking on the “I’ll get you fired” which most legal folks felt was a not good look.
One other item to note here, this was a pre-emptive 1A filing from the professor.Report
Yes, the suit was filed to prevent future discipline and I can see why a lawyer would advise him to do it.
In fairness to Shawnee State’s counsel this is not an easy argument to make. You have to be able to say that the Title IX prohibition on sex discrimination as codified in the school’s policy is such that it can actually compel speech in contravention of a deeply held religious belief by the professor, all in spite of the 1st Amendment. You also have to do that where there are some pretty strong precedents against compelled speech.
I’m not saying a good attorney couldn’t make an interesting, and maybe even convincing argument that gets there but it is not a light lift.Report
It did not compel speech.
There was absolutely no reason he couldn’t have stopped referred to _all_ students in a gendered fashion.Report
@InMD
Correct me if I’m wrong, but I presume the public university can tell professors, “You can’t call students assholes.” Is that correct?
If so, why can’t the university also tell professors, “You can’t misgender students?”
This isn’t curriculum. It is about the professional expectations for their interactions with students (e.g., their customers).
Sorry, just saw your second comment (re: ME history) and I would say you should be able to draw a pretty clear line between “curriculum” and “expectations of professional behavior.”
So I’d say that the ME history teacher can teach ME history however they see fit, including all that you offer, and I wouldn’t say that the students can make claims of a hostile environment.
But the professor couldn’t wear a shirt with a Swastika because I imagine the school would not allow any employee to wear a Swastika.
At the same time, if the students are so bothered by the teacher’s curriculum that they write poor reviews and refuse to sign up for their section and the classes are repeatedly canceled, then I imagine the university should have room to take action. Not disciplinary, but they could say, “We need you to revamp your curriculum and get your evals or attendance numbers up,” or “Your class has been cancelled for 3 semesters now. You’re fired.”Report
Keep in mind for Title IX purposes a ‘hostile environment’ has to be so severe, pervasive and objectively unreasonable that it denies an individual an education. I think there are things that would meet that standard which professors can be disciplined for doing that don’t create a 1A problem. The 6th Circuit cites some examples in case law that do (a coach using racial epithets at the team during practice was one). So it’s not like there is carte blanche here. And to your larger point there are certainly alternative ways to work through these things that would be a lot less likely to result in this type of claim.Report
while there are alternate ways to work through these things, it’s more difficult at a public than a private higher ed institution…
these sorts of professors are a nightmare on the institutional level because, generally speaking, post-tenure review mechanisms have their limitations. which is the point of tenure, after all – to be largely unfireable for one’s research and personal interests. they also tend to be people who are not amenable to suggestions on conduct from peers, chairs, admins, students, etc (all of which have varying levels of fraughtness attached to them).
i will pour one out (mostly old coffee) for the pr folk at shawnee today. may they lash themselves to the mast and survive the siren calls (and weird, random death threats) they’ll be getting from various constituencies and, ahem, interested third parties.
(a pox on those “interested third parties” in particular. they are my least favorite parties.)Report
Well, for the record I don’t think Professor Merriweather will be going down in the history books as a hero of the First Amendment. However there are some very real legal issues around how existing law and jurisprudence applies to people who identify as a gender that does not correspond to their physical sex. Shawnee State is hardly alone in facing demands to shoehorn it into aging civil rights laws written long before the increasing social visibility and cultural awareness (and hopefully greater acceptance) of trans people.
I see this as another example of how legislative paralysis is forcing debates into the courts ill-equipped to resolve them under existing law. My sympathy for the Universities is pretty limited given their decision-making, but I don’t think they’re being put in a great position either.Report
Just to give you something to chew on: is a Muslim ME history professor who says that the West Bank has been wrongly taken by Zionists creating a hostile environment for a Jewish student? Could that professor be compelled to take a different position by a state school’s policies against religious discrimination? What about the reverse where a Jewish professor says the Palestinian people aren’t real but are rather a construct of 20th century geo-politics? Is the child of Palestinian immigrant parents in the class being subjected to a hostile environment or some other discrimination? Could the school compel the professor to say something counter to that?
Not saying I have the answer just asking you to consider whether it is really so obvious which interest wins out.Report
Does this hypothetical teacher address Jewish students as ‘The Jew’? Because…that might actually be a sign there’s a problem.
There really is a difference between a teacher having stated political positions in class, and how they interact with their students in class.
They are allowed to believe all sorts of things. What they are not allowed to do is treat students differently because of those things.
Like referring to them in different ways from other students.
This professor is apparently unable to actually treat students the same, and at that point not only should he be disciplined, but it would be useful to look into whether his inability to do that actually impacted his grading and other classrooms things. And no, the fact that Doe was near the top of class doesn’t change that…a bias like that could easily result in him deliberately over-correcting it with her (Which is unfair to other students) but still showing up towards students who _agreed_ with her.
This professor cannot operate in a neutral manner, and his religious beliefs clearly impact how he interacts with students.Report
“Rickey Henderson doesn’t use pronouns when Rickey Henderson is talking about Rickey Henderson.”Report
I wouldn’t last long at my job if I decided to rename and re-gender random employees. I’d be fired for being an asshole, a nuisance, and a general distraction from the job.
“But my religion means I have to be an asshole to people” would not, at all, fly.Report
This is the correct interpretation. How odd is it that conservative Christians seem to overlook the New Testament nearly all the time in matters like this?Report
Not odd at all actually. Big swaths of “conservative Christianity” have for decades ignored Christ’s actual teachings in favor of the very strict social controls of the Old Testament. And point it out to them generally elicits silence at best.Report
I just want to point out that there is also a problem of… well, I’ll use myself as the example.
“Christ’s actual teachings would result in legal marijuana.”Report
Sure they would. And way less oppression and way less conflict. Christ – if you actually read Him in the Four Gospel’s – calls us toward a whole series of things that are human centered but outwardly focused. Christ claims us to help others, and deny ourselves.
Its no wonder that Americans, and in particular conservative Christian Americans, don’t want to follow those teachings. Its radical power and resource sharing on a scale that is too scary to people who benefit from oppression even if they don’t participate in it.Report
Or they are perfectly willing to do it within their church, or community of other fellow travelers.
But granting that grace to others….
A lot of Christians do, but a lot of them refuse.Report
Not a Christian but, if Christianity were to turn out to be actually true, I have no doubts the anti-Christ would be preaching the prosperity doctrine to crowds of adoring evangelicals.Report
So… presumably this professor could call students whatever he likes. Regardless of their preference.
Brilliant ruling.Report
“Miss Meriweather, why are you entering the men’s restroom?”Report
Time to sit back and wait for the reaction to the first professor to start calling his conservative students “Adolf” or “Cletus”.Report
Man, I bet you that the conservatives will totally be taken aback to be treated poorly by a sufficiently progressive college professor!Report
Cue the Satanist Temple creating a religious requirement for their followers to refer to ‘people who don’t use preferred pronoun’ with the pronoun ‘huge f****** bigot’ in three…two…one…Report
You know, Jaybird brought up ‘Boy’ above, and reading this actual decision, I’m struck by a fact: The argument appears to be that literally that him being referring to a student in a certain way _is_ making a political position known, and thus is fine.
Which really _does_ raise the question of why he could not take an anti-Black position and interact with those students in a different way. As long as he isn’t ‘hostile’, which…I mean, racial slur would be hostile, but would be ‘Boy’? What about calling Black students by their first name, in a deliberate way, indicating he thought less of them then his white students, who he called by ‘Mr. Whatever’. What if he explained, when asked, that he was doing in on purpose, because he didn’t believe Black people belong in college…
…and yet was scrupulously fair about treating their education identically. Calling on them in class, grading their paper, all 100% fair. He just makes it clear he disapproves of them being there, at all, and his religion thinks they are lesser.
Nothing in this decision seems to preclude that at all. It seems to assume you can constantly be disrespectful to students on the basis of sex _without_ creating a hostile environment, which raises the immediate question of ‘why not race?’…
Because, in reality…you can’t actually do that. You can’t say ‘I am going to interact with certain students in a specific way that indicates, every time I interact with them, I don’t agree with their identity.’, and then turn around and claim there isn’t a hostile environment created. I mean, maybe another student mis-gendering Doe, that might be workable. Hell, you could have the teacher, _during a discussion_, say something like that. I get that.
But every student-teacher interaction? No. Every time she gets called on, she’s reminded ‘This professor will not do me the slightest courtesy of even referring to me in the correct way’.
Which, again, raises the question of what _other_ disrespectful things can professors do to be hostile to what sort of groups of students…and somehow getting away with ‘not creating a hostile environment.
—
Oh, and I’m sure someone is going to claim ‘Calling on her using her last name is being neutral’. No, it’s not. If everyone else is being called Mr. or Ms., and you’re being called just your last name, that’s disrespectful.
Oh, hey, fun question: What if he insisted on referring to women as either Miss or Mrs, depending on martial state? Like, required every woman to state that at the start of class, and then called them the correct term, despite a few student’s likely insistence he used ‘Ms’?
Ooo, oooh, fun bonus question: What if he insisted on calling a married lesbian ‘Miss’ despite her repeatedly correcting him that she was married?
Yeah. How you refer to people does, indeed convey how much you respect you have for who they are.Report
(I did?)Report
Oh, sorry, that was Oscar.Report
I try to avoid the details of this sort of thing, since I feel it’s very much in the “First World problems” category, but I was curious about the sentence “he refused to call a transgender student by her preferred pronoun” — it made no sense to me since the only gendered pronouns are 3rd person, and why would you call someone by a 3rd person pronoun? Reading the background in the opinion, I see that “preferred pronouns” must be just a stand-in for all gendered terms of address or reference.
However, I recommend that folks read the background (1st 10 pages) before commenting — from this account, the professor was trying to be as accommodating as possible right up to the line that he didn’t want to cross, and the expectation from the student and the administration was basically total submission or the highway. One can obviously disagree with his beliefs, but he wasn’t being an ass or purposely disrespectful, if this summary is reliable.Report
If the student had been a trans man, this would have been the perfect setup for a joke about calling a Doe a stallion.Report
Related!!! Apparently the Arkansas gov has just signed a bill allowing medical peeps to not treat anybody they don’t wish if it offends their religious beliefs. This doesn’t apply in emergency situations. People are taking this as medical people can avoid treating LBGTQ people which is almost certainly the impetuous behind this. This doesn’t seem great to me.Report
That’s a little misleading. The bill technically allows medical people to refuse to provide _services_ if it offends their religious beliefs.
They already twigged on the ‘We can’t write a bill that lets people openly discriminate against gay people, so we have to pretend this is about what services doctors provide’, and they keep using examples of abortion or birth control.
The problem is, there doesn’t seem to be any real way to keep track of this in any manner, or make it consistent, or make them announce this in advance.
So if an LGBT person shows up, the doctor can just asset they don’t want to provide whatever service is needed, despite the fact they provide that service for straight people all the time.
No one is required to announce this in advance, and the services aren’t limited at all or require any justification, so there’s nothing disallowing an optometrist saying to a gay man they don’t want as a patient from saying ‘I have a religious objection to doing an eye test or selling you contact lens’ (Despite how nonsensical that is.), and…that’s just supposed to be how that works.
And, let’s be clear: This is something doctors already sorta could do. They could just refuse to take any patient. I mean, that’s true of any sort of discrimination…businesses can, indeed, refuse to serve people for bigotted means, and it’s hard to prove because they can…refuse to serve people for _no_ reason.
However, the problem is enshrining this sort of thing in law, and giving a legal justification that is very very easy to use.
The law doesn’t even bother to mention ‘You cannot refuse to provide medical services due to the fact you do not wish to serve the patient for protected reasons under state or Federal’. Like, you still _can’t_ do that, under Federal nondiscrimination law, and the governor actually mentioned that in tweets about this, but this new state law doesn’t bother to mention that.
In fact, the new law is mostly about the fact that _employers_ can’t ‘discriminate’ against employees that do this, which…it sure is interesting how the only time Republicans are on the side of employees instead of employers is discrimination, where they are really really determined to make sure that employees _literally can refuse to do their job_ if they don’t like who they have to work with.
Honestly, at this point…I would urge the entire medical profession in Arkansas to immediately go strike by asserting they have a religious objection to providing _any_ medical services whatsoever…well, I call it a strike, this law would require them to still get paid and they couldn’t be retaliated against in any manner.Report
The law does, supposedly, require the medical professional to provide ‘a comprehensive list by billing code of any and all products, services, and procedures that the healthcare payer shall not pay or make payment for reasons of conscience’, but…fun fact: Billing codes and procedures are very manipulatable and all the medical professional has to do is assert what they were going to do for a LGBT person was slightly different than those things they were doing for a straight person.
Hell, they can just outright _lie_, assert the rejected patients needed more serious care or a larger procedure or something, because they aren’t _doing_ the thing, so medical ethics don’t actually apply.
Rejected LGBT patient: “I came to you for a broken arm and you rejected me, despite the fact that you don’t list that on your site. You rejected me just because I’m gay.”
Doctor who rejects LGBT patients: “I don’t treat compound fractures for religious reasons. That’s on my website, and filed with the state.”
“It was a simple fracture, not a compound one! I have documented evidence from the doctor that finally did treat me.”
“Well, I didn’t _know_ that at the time. I was wrong. Good thing you can’t sue me for malpractice because I didn’t actually do anything.”
“And you treated that other guy who came in with a compound fracture. The _straight_ guy.”
“I didn’t realize he had a compound fracture until I had already started treatment, and felt my medical ethics required me to keep going forward. However, I didn’t charge him, as required by law.”
“You just charged him $2000 for his cast.”
“And? I don’t object to providing a cast, so I can charge for that. I object to setting compound fractures, so I can refuse to do them, and I can’t bill for them when I do. Again, this is all on my website.”
Judge: “Hey, wait, how the hell do you legally have medical information about this other person anyway? You can’t introduce that in court, this entire premise doesn’t even make sense. Rewind this hypothetical back to before that.”Report
The professor’s claim is “Christianity forbids me from exercising common courtesy towards my students”. That’s one hell of a self-own.Report
Being the faithless heathen I am, does anyone have a clue where in the bible the question of pronouns or gender specific honorifics is addressed?Report
I know next to nothing about ancient Hebrew. But gender, properly speaking, is a trait of words, and sex is a trait of animals (I guess some plants too). Hebrew language makes distinctions between the sexes, but more to the point, Jewish law makes distinctions between the sexes. So one could see a denial of sexual difference as a violation of Jewish law.
(I haven’t read the decision or followed the thread;. I was just addressing the small point.)Report
It doesn’t. In fact the Bible is mostly silent on a LOT of the things that conservatives and Evangelical Christians rail on about in the US.Report
Love thy neighbor as thyself, and the general golden rule clearly only apply to people Christians agree with.
Somehow I don’t think the professor would appreciate students deciding his new title is “Professor Asshole”.
And Christians wonder why their pews keep getting emptier.Report
As conservatives increasingly find themselves in the minority, they increasingly resort to the radical individualist sort of arguments once only held by radical leftists circa 1972.Report
Related:
http://panthernow.com/2021/03/25/three-florida-bills-target-financial-aid-and-campus-voices/
SB 264 would require public universities to do a yearly assessment survey on “intellectual freedom and viewpoint diversity.” Intended to combat “cancel culture” at universities, the bill would make the survey results publicly available.
The legislation would also allow students to record lectures, and prohibit colleges from shielding students from “certain speech.”
According to Moreno, state Republicans have introduced this bill in fears of left-wing influence on college campuses.
“As the country has become… more divided politically, the universities have become more of a political football,” said Moreno. “One of the perceptions of many conservative lawmakers is that universities are a hotbed of liberal thinking, and that conservatives are not treated fairly at universities.”
This idea might have been sparked by an incident in 2018, when the University of Florida attempted to block white nationalist Richard Spencer from speaking on campus.
Moreno thinks the bill will likely be signed into law.
“This bill will probably pass, because it has a lot of support. The governor supports it,” said Moreno. “And so I think it’s kind of a wake up call on universities in how they handled issues of free speech, and speakers on campus.”
However, Moreno says conservative censorship is not an issue at FIU.
“I don’t think it’s a problem [at FIU],” he said. “I think it’s a misperception that comes… when you have a case at Harvard or Yale, or some other institution, and it makes the national news and legislators think there’s a big problem.”
Moreno says the bill does not specify what the survey will be used for.
“If [the survey] finds that conservative or liberal students feel that their views aren’t being represented, it will be reported to the Board of [Governors] and the local boards for them to take action,” he said. “What action they will take is what’s unclear.”
No one is more articulate or yelps louder about “feelings” of disrespect or marginalization than conservatives.
Conservatives generally, and Professor Meriweather in particular, understand perfectly well how trans students “feel” when they are misgendered. That’s the point! Their pain and discomfort is exactly the goal, as a tool to coerce them into the social framework they believe to be correct.Report