Meriwether v. Hartop, et al, Jane Doe, and Sexuality and Gender Acceptance, No. 20-2389 (6th Cir.). March 26, 2021.
The United States Court of Appeals for the Sixth Circuit, observing that the trial court had lost sight of fundamental First Amendment principles, has vacated dismissal of a professor’s case alleging that his employer, state university, impermissibly infringed on his First Amendment speech rights and impinged on his Free Exercise interests.
Accepting solely for purposes of its review that plaintiff Meriwether’s allegations are true, the court recounted that in the course of teaching that Meriwether, a professor at Shawnee State University for 25 years, referred to a student as a male. That student approached Meriwether after class and demanded to be referred to as a female. Meriwether demurred based on religious principles and an inability to affirm that which he believes to be untrue. The student uttered a coarse epithet and promised to have Meriwether fired.
After reporting the incident, one colleague opined that religion ought not be taught at the school, knowing that Meriwether had done exactly that for a quarter of a century. The school insisted that Meriwether conform to its anti-discrimination policies by conforming his language to the student’s preference or by not using pronouns at all. As Meriwether stated he could not on principle do the first nor in practice do the second, the school administrators attempted to reach a compromise in which Meriwether would address the student with neutral terms.
The student complained repeatedly, prompting Title IX review, which concluded that Meriwether had created a hostile environment in violation of that law, which guarantees equal treatment in education. Meriwether presented a grievance through the faculty union which prompted laughter from the hearing official, who would later be the reviewing official on appeal. That reviewing official’s delegate determined that Meriwether was undeserving of an accommodation based on religious principles perceived to be bigoted, and therefore unworthy of legal protection.
Meetings were held and memoranda were generated and the compromise offered to Meriwether was revoked. He was instructed to conform to the school’s speech policies or face discipline, which might include termination or suspension without pay. A written warning to that effect was added to his official file.
Meriwether sued and lost in federal district court. On appeal, the Sixth Circuit has stressed that teachers at public universities do not lose First Amendment rights by virtue of that status. The university’s interest in administration, premised on inchoate fears, did not outweigh the faculty member’s speech rights. Statutes and policies intended to ensure the fair treatment of all are not superior to all other statutes and policies, the court observed. The finding of a violation of Title IX was in error where there was no pervasive culture making student life intolerable.
The Sixth Circuit concluded that the school had compelled speech by demanding that Meriwether use pronouns deemed acceptable according to policy, and compelled silence in that speech without pronouns was impossible, and an explanation of his views on his syllabus was denied, as was his request for religious accommodation, none of which, subject to development of the record, may be constitutionally tolerable. Equally problematic was the school’s failure to treat Meriwether’s beliefs even-handedly. The court found the hostility displayed toward Meriwether troubling and contrary to Supreme Court precedent.
The case has been remanded to the federal trial court for further proceedings.