“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.
With Trump judges Amul Thapar and Joan Larsen making a majority possible, a Sixth Circuit panel ruled that a public university professor has a constitutional right to refuse to use a transgender student’s preferred gender pronoun and title during class. The March 2021 case was Meriwether v. Hartop.
Professor Nicholas Meriwether teaches philosophy at Shawnee State University in Ohio. Under the school’s policy, faculty are required to use students’ preferred pronouns. After Meriwether misgendered a student in class and called her “Mr. Doe,” she corrected him after class. However, because he has a religious belief that she is a man, he refused to call her “Ms. Doe.” Instead, while using “Mr.” or Ms.” for all other students, he singled her out and simply used her surname without a title. When Doe complained to the university, Meriwether said he would agree to use the right pronoun if he could also place a notice on his course syllabus that he was doing so “under compulsion” and stating his religious beliefs about gender identity—a proposal that school officials did not accept because it would have violated their nondiscrimination policy. The university ultimately disciplined him for discriminating. In response, Meriwether sued, alleging that requiring him to call his student “Ms. Doe” violates his First Amendment rights to free speech and free exercise of religion. The district court judge dismissed his lawsuit, concluding that the discipline did not violate his constitutional rights.
But that ruling was reversed by a three-judge panel including Judges Amul Thapar and Joan Larsen (both Trump judges) and David McKeague (a George W. Bush nominee). In Thapar’s opinion for the panel, he claimed that the district court had “held that a professor’s speech in the classroom is never protected by the First Amendment.” In fact, the district judge had made the far more narrow and fact-specific ruling that “[Meriwether’s] speech—the manner by which he addressed a transgender student—was not protected under the First Amendment.” In addition, the magistrate judge whose recommendation the district court accepted had specifically noted circuit precedent that “[a]lthough public universities may not force professors to endorse or eschew specific viewpoints, the First Amendment does not bar a public university from requiring that its faculty treat each other and their students with civility.” Nevertheless, Thapar painted the district court’s ruling as an assault on academic freedom and characterized the university as silencing Meriwether on “a hotly contested matter of public concern.” If a professor with Meriwether’s personal beliefs about gender can be required to use a student’s requested pronouns, then a university could “require … a civil rights icon to condemn the Freedom Riders…”
As Mark Stern has written, Thapar depicted Meriwether “as a persecuted folk hero,” making it easy to forget what Meriwether had actually done: “use his position of authority to out [a student] as transgender in front of her classmates, then continually degrade her by denying her identity for an entire semester.”
The Sixth Circuit panel also ruled that Meriwether had sufficiently pled allegations that, if true, would implicate his free exercise of religion. Thapar cited statements allegedly made by university officials that he characterized as showing a constitutionally impermissible hostility to religion. For instance, according to Meriwether, one official laughed at his religious beliefs, another said that religion “oppresses students,” and a third equated Meriwether’s beliefs to religiously motivated racism or sexism. In ruling that this suggested a First Amendment violation, the majority cited statements made by local officials in Masterpiece Cakeshop.
Stern summed up the implications of Thapar’s reasoning: Public university professors “have a constitutional right to use racial epithets in class, [or] to use misogynistic language in front of students” as freedom of speech, but “any speech critical of religion would remain off-limits, since such expression apparently violates others’ religious liberty.”