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Sixth Circuit Court Of Appeals Recognizes An Academic Exception To Restrictions On The First Amendment Rights Of Public Employees
Nicholas Meriwether has been a philosophy professor at Shawnee State University, a small public college in Ohio, for 25 years. Meriwether considered himself a devout Christian and, based on his religious beliefs, he believed sex is fixed and cannot be changed regardless of an individual’s feelings or desires.
At the beginning of the 2016-2017 academic year, the University informed faculty that they must refer to students by their preferred pronouns. The University stated it would discipline professors if they “refused to use a pronoun that reflects a student’s self-asserted gender identity.”
On multiple occasions in the Spring 2018 semester, Meriwether refused to use a student’s preferred pronouns in class. The student complained to the University, and subsequently, the University provided Meriwether multiple warnings regarding his non-compliance with its policies and investigated the student’s complaints. The University concluded Meriwether created a hostile environment in violation of the University’s nondiscrimination policies, which protect individuals from discrimination based on gender identity.
Meriwether requested an accommodation from the nondiscrimination policy based on his sincerely held religious beliefs, but the University repeatedly declined the request. The University ultimately gave Meriwether a written reprimand.
Meriwether filed a lawsuit against the University alleging it violated his rights under the Free Speech and Free Exercise Clauses of the First Amendment among other allegations. The trial court dismissed all of Meriwether’s claims, and Meriwether appealed.
The Court of Appeals found this case implicated the United States Supreme Court’s seminal case concerning the First Amendment rights of public employees, Garcetti v. Ceballos. In Garcetti, the Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” However, the Garcetti Court declined to decide whether this holding applied “to a case involving speech related to scholarship or teaching.”
The Court of Appeals held that professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship. Accordingly, this academic-freedom exception to Garcetti covered all classroom speech related to matters of public concern, irrespective of whether that speech is germane to the contents of the lecture.
Although the Court of Appeals acknowledged an academic-freedom exception to Garcetti, it also held that professors are not immune from discipline-based upon their classroom speech. Instead, the Court of Appeals applied a test developed by the Supreme Court in Pickering v. Board of Education and Connick v. Myers. Under the Pickering-Connick analysis, a professor’s classroom speech was protected if (1) the speech related to a matter of public concern, and (2) the employee’s First Amendment interest outweighed the government’s need for efficiency as an employer. Applying this test, the Court of Appeals held that Meriwether prevailed under both prongs. First, the Court of Appeals found that Meriwether expressed a view on a matter of public concern by refusing to comply with the University’s pronoun policy, noting that “when Meriwether waded into the pronoun debate, he waded into a matter of public concern.” Second, the Court of Appeals found the Pickering balance weighed in Meriwether’s favor based upon the importance of academic freedom to our democracy and judicial reluctance to permit the government to compel the speech of individuals over their objection. In reaching this conclusion, the Court of Appeals rejected the University’s argument that Title IX required a contrary result because there was no evidence to support the argument that Meriwether’s decision not to refer to the student complainant using the student’s preferred pronouns had the effect of denying the student equal access to the University’s educational program or activity.
Meriwether also argued the University violated the Free Exercise Clause when it disciplined him for not following its pronoun policy. Although the University argued that compliance with nondiscrimination policies never burdens an individual’s religious beliefs, the Court of Appeal held that depending on the circumstances, the application of a nondiscrimination policy could force a person to endorse views incompatible with his religious convictions. Accordingly, the Court of Appeals found that Meriwether plausibly alleged that the University’s application of its pronoun policy was not neutral for at least two reasons: (1) University officials exhibited hostility to Meriwether’s religious beliefs, and (2) irregularities in the University’s adjudication and investigation processes permitted a plausible inference of non-neutrality. Because Meriwether made a plausible Free Exercise claim, the trial court should not have dismissed the claim.
Lastly, Meriwether claimed that the University’s pronoun policy was unconstitutionally vague as applied to him. A policy is unconstitutionally vague when it either fails to inform ordinary people what conduct is prohibited or allows for arbitrary and discriminatory enforcement. However, the Court of Appeal found Meriwether was on notice that the University’s policy prohibited his conduct, so he could not challenge it for vagueness. Furthermore, Meriwether also failed to argue that the policy allowed for arbitrary and discriminatory enforcement. Thus, the Court of Appeal upheld the trial court’s decision to dismiss this claim.
Ultimately, the Court of Appeals reversed the trial court’s dismissal and instructed the trial court to conduct proceedings consistent with its opinion.
Meriwether v. Hartop (2021) 992 F.3d 492.
This case is from the United States Court of Appeals for the Sixth Circuit. This case is not binding in California, but it does provide some insight into how one federal appellate court interpreted the First Amendment regarding a public university’s enforcement of its anti-harassment and discrimination policy.