The Sixth Circuit Court of Appeals is being invited to invalidate the entire field of hostile environment harassment law. One cannot confidently predict that the invitation will be declined. If the plaintiff in Meriwether v. The Trustees of Shawnee State University prevails, teachers at public colleges will have a constitutional right to subject their students to bigoted slurs. Much of anti-discrimination law would be deemed unconstitutional.
Nicholas Meriwether teaches philosophy at Shawnee State University, a public university in Ohio. He 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 disciplined for discrimination, he sued the school, claiming that his free speech rights were violated.
His complaint is full of allegations about compelled speech. The nondiscrimination policies “compel Dr. Meriwether to communicate messages about gender identity that he does not hold, that he does not wish to communicate, and that conflict with (and for him to violate) his religious beliefs.” He is being punished “for refusing to communicate a University-mandated ideological message regarding gender identity.”
Meriwether’s Sixth Circuit brief declares that the school “gave him no way to speak without endorsing philosophies that he believes are false and violating his religious beliefs. . . . To call a man a woman, he must endorse metaphysical positions he believes are false. University officials are compelling him to communicate their ideas about sex and gender as his own.”
All this is pretty silly stuff. Government employees do not get to say whatever they want. The clerk at the Department of Motor Vehicles may not make political speeches to those who apply for licenses. The Supreme Court’s Pickering test holds that the speech of public employees always must be balanced against “the interest of the State, as an employer, in promoting the efficiency of the public services it performs.” The rights of public employees to speak while on the job were even further narrowed in Garcetti v. Ceballos, which held that free speech does not apply to speech that is part of one’s official duties. So, this is an easy case. Rules against discrimination obviously promote the delivery of educational services.
Even though the school was entitled to ignore Meriwether’s claim, it tried to be nice. It suggested that he could refer to all students by first or last names only, without using gendered pronouns 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. Why would he not do that?
It’s sometimes tricky, but hardly impossible, for conservative Christians and LGBT people to live together in peace and mutual respect. Often, when they come into conflict, it is possible to put together a solution that makes room for everyone. That’s what the school tried to do. But this won’t work if someone is spoiling for a fight and won’t take yes for an answer.
His district court complaint declares: “Dr. Meriwether refers to students in this fashion to foster an atmosphere of seriousness and mutual respect that is befitting the college classroom. Dr. Meriwether believes that this formal manner of addressing students helps them view the academic enterprise as a serious, weighty endeavor.” Of course, the seriousness and weightiness of honorifics were not available to the transgender student. Meriwether is insisting on his right to single out the transgender student and treat her worse than all other students.
Meriwether is essentially alleging that his academic freedom, or perhaps his freedom from compelled speech (he offers lots of different free speech formulations), means that he has a First Amendment right to say anything he wants in his classroom. He also offers a Free Exercise argument, that he gets to say whatever is consistent with his religious beliefs. If these claims are accepted, then teachers have an unlimited right to verbally mistreat students.
His arguments are so extravagant that they shouldn’t be worthy of notice. But lately we have seen a hypertrophy of First Amendment claims. In the 2018 case of Masterpiece Cakeshop v. Colorado, Justice Thomas came close to saying that any action with communicative significance is protected by free speech, and Justice Gorsuch suggested that any law that penalizes religiously motivated conduct can be characterized as religious discrimination. Both that case and this one were litigated by Kristen Waggoner, of the Alliance Defending Freedom (which posts some of the case’s documents here), and those justices adopted her claims. The claims themselves would make nonsense of the law.
But Waggoner is a capable lawyer who knows her court. I am confident that this extraordinarily broad understanding is not now the law, and that the Sixth Circuit thus must reject it. I can’t be confident that she won’t persuade the Supreme Court, if the case gets that far.
Andrew Koppelman is a professor of law at Northwestern University and author of the recently published "Gay Rights vs. Religious Liberty? The Unnecessary Conflict." Follow him on Twitter @AndrewKoppelman.