The U.S. 6th Circuit Court of Appeals (which covers Michigan and Ohio employers) recently addressed whether a public university violated a professor’s rights under the First Amendment’s Free Speech and Free Exercise Clauses when it disciplined him for refusing to use the pronouns requested by a student.
Nicholas Meriwether is a “devout Christian” and philosophy professor at Shawnee State University, a small public institution in Ohio. The university enacted a policy requiring faculty members to “refer to students by their ‘preferred pronoun[s],'” regardless of their “convictions or views on the subject.”
In January 2018, Meriwether acknowledged a student as “sir,” upon which the student disclosed she identifies as a woman and requested the use of “feminine titles and pronouns.” The professor “wasn’t sure” whether he could “comply” with the request, so he asked university officials to implement some alternatives to the pronoun policy.
In particular, Meriwether proposed he would use either (1) no pronouns when interacting with the student or (2) the requested pronouns, but only after placing a “disclaimer” in his syllabus “noting that he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity.” Shawnee State endorsed neither “accommodation” and eventually presented the professor with two options:
- Eliminate all sex-based pronouns when interacting with students; or
- Use the pronouns requested by the student.
Shawnee State then conducted an investigation, concluding Meriwether’s “disparate treatment” had “created a hostile work environment” warranting discipline. A written warning was placed in his file, directing him to comply with the university’s pronoun policy and advising that future violations will result in “further corrective actions.” His grievance of the discipline was denied.
Meriwether then filed suit, alleging Shawnee State had violated his rights under (1) the First Amendment’s Free Speech and Free Exercise Clauses, (2) the Fourteenth Amendment’s Due Process and Equal Protection Clauses, (3) the Ohio Constitution, and (4) his employment contract. The magistrate judge at the district court level dismissed the federal claims and declined to exercise supplemental jurisdiction over the state claims. The professor appealed.
6th Circuit’s Decision
The 6th Circuit’s opinion confirmed the First Amendment’s Free Speech Clause applies to public universities and their professors and noted the government “may not compel affirmance of a belief with which the speaker disagrees.” Nonetheless, in Garcetti v. Ceballos, the U.S. Supreme Court concluded public employees making statements “pursuant to their official duties” aren’t “speaking as citizens for First Amendment purposes.” The question for the 6th Circuit was whether the Garcetti rule barred Meriwether’s claim.
In Garcetti, the Supreme Court “expressly declined to address whether its analysis would apply ‘to a case involving speech related to scholarship or teaching.'” And in previous opinions, the Court “long recognized” the significance of “expansive freedoms of speech” in university settings, occupying a “special niche in our constitutional tradition.”
The 6th Circuit determined professors at public institutions “retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship,” guarding speech that is both “germane to the contents of the lecture” and “not.”
The 6th Circuit next applied the Pickering-Connick framework to evaluate whether Meriwether’s specific speech was protected:
- Was the professor speaking on “a matter of public concern”?
- Was his interest in doing so greater than the university’s interest in “promoting the efficiency of the public services it performs through” him?
Because Meriwether’s refusal to use “gender-identity-based pronouns” relates to a “matter of political, social, or other concern to the community,” it is a matter of public concern.
In determining which party’s interest is greater, Meriwether highlighted the significance of his academic freedom, and Shawnee State cited its “compelling interest in stopping discrimination against transgender students.” The 6th Circuit concluded the university had “flouted” the core principle of the First Amendment and violated the professor’s free-speech rights because, in part, it refused what the court considered to be his reasonable accommodation requests.
With regard to Meriwether’s claim under the Free Exercise Clause, the 6th Circuit analyzed whether the pronoun policy burdened the professor’s religious exercise. Such a policy is “presumptively unconstitutional unless [it is] both neutral and generally applicable.” Because (1) the university “exhibited hostility” to his religious beliefs and (2) there were “irregularities” in its “adjudication and investigation processes,” the court concluded his rights under the Free Exercise Clause were violated upon issuance of the written warning.
The 6th Circuit affirmed the district court’s dismissal of only the Due Process Clause claim because the pronoun policy wasn’t “unconstitutionally vague.” Meriwether was “on notice that the policy prohibited his conduct.”
Finally, the 6th Circuit vacated the district court’s dismissal of the state-law claims and sent the case back to the lower court for further proceedings. Meriwether v. Hartop (3/26/2021).
Bottom Line
Though the 6th Circuit’s opinion is specific to public employers in the academic context, all employers have obligations to both (1) accommodate employees’ religious beliefs and (2) ensure the promulgation of a working environment free of discrimination and harassment based on protected characteristics, including gender identity. When those duties conflict, you should consult with counsel to carefully craft a solution.
Rebecca Seguin-Skrabucha is an attorney with Bodman PLC in Troy, Michigan. You can reach her at rseguinskrabucha@bodmanlaw.com.