Ohio Appellate Court Short-Circuits College Campus Cancel Culture
COMMENTARY: A Christian professor at Shawnee State University scored a victory for First Amendment rights.
Last Friday, an appellate court in Cincinnati scored a victory for conscience and for academic freedom, made possible thanks to two rights guaranteed by the First Amendment — freedom of speech and the free exercise of religion.
Nicholas Meriwether, a long-time college professor at Shawnee State University in Portsmouth, Ohio, is a devout Christian. His religious convictions influence how he thinks. He believes that “God created human beings as either male or female, that this sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual’s feelings or desires.” Meriwether’s understanding was never a problem at Shawnee. That is, until 2016.
At the start of the 2016 school year, Shawnee State informed faculty, including Meriwether, that they had to refer to students by their “preferred pronouns.” Shawnee’s pronoun policy, if violated, would subject professors to discipline. It applied “regardless of the professor’s convictions or views on the subject.”
Meriwether approached the chairwoman of his department, Jennifer Pauley, about the policy. He found her derisive and scornful. She said that Christians were “primarily motivated out of fear” and should be “banned from teaching courses regarding that religion.”
In January 2018, the second semester of the following academic year, Meriwether responded to a question from a student he assumed was male, based on “outward appearances,” by saying “Yes, sir.” The student confronted Meriwether after class, demanding that he refer to the student as a woman and use “feminine titles and pronouns.” Meriwether notified school officials of the incident. One school official advised Meriwether to “eliminate all sex-based references from his expression.” The professor, in turn, suggested using only the last name of the student in question.
Meriwether continued to teach the student, who excelled and was awarded a high grade. Once, however, Meriwether accidentally referred to the student using the title “Mr.” before immediately correcting himself. This slip-up, of course, landed him in hot water with the ideologue college administrators, who proceeded to launch a formal investigation of Meriwether. The school’s Title IX office was brought in. His “disparate treatment” of the student had created a “hostile environment.” A formal charge was brought against Meriwether. A written warning was placed in his personnel file. No accommodation for his personal and religious beliefs was allowed.
Having exhausted all of his appeals internally at Shawnee, Meriwether filed suit against the school. He claimed that the university violated his free speech and free exercise rights under the First Amendment. Joining in defense of the college as intervenors was Meriwether’s student and a group called “Sexuality and Gender Acceptance.” The district court dismissed Meriwether’s case, but a three-judge appellate panel reversed the ruling and sent the case back for further proceedings. For now, at least, Meriwether has a chance to vindicate himself.
Judge Amul Thapar, writing for a unanimous panel of the U.S. Court of Appeals for the Sixth Circuit, authored a brilliant opinion that should stand as a model not only for lower courts, but also for sister circuits reviewing the insidious role of campus speech codes in forcing adoption of gender ideology.
First and foremost, Thapar made clear that “the First Amendment protects the academic speech of university professors” at state colleges and universities. Although the Supreme Court in 2006 ruled that the First Amendment does not insulate public employees speaking in their official duties from discipline, this holding didn’t apply to the situation at Shawnee.
“If professors lacked free-speech protections when teaching,” warned Thapar, “a university would wield alarming power to compel ideological conformity.” Unlike any other public workplace setting, the free and robust exchange of ideas is crucial in an academic one.
Obviously, courts recognize that there are limits. Thapar explained that Meriwether must have been speaking on “a matter of public concern” and that his interest in doing so outweighed Shawnee’s interest in “promoting the efficiency of the public services it performs through him.”
On the first point, Thapar concluded that the point of Meriwether’s speech (or his refusal to speak the preferred pronouns of students when different from their biological sex) conveyed a message most certainly on a matter of public concern. Anyone doubting that can just look to the debates going on relating to the Equality Act. And to the second point, Meriwether clearly has a strong interest in academic freedom. Shawnee’s interest in regulating its faculty speech even in the classroom on a matter of public debate — not so strong.
Based on the facts that Meriwether alleged (the standard when reviewing motions to dismiss), Thapar concluded that the professor stated a viable claim that his free-speech rights were violated.
Now on to the free exercise of religion. Thapar and his colleagues noted that Meriwether alleged that Shawnee officials were hostile to his religious beliefs and that the school’s “adjudication and investigation processes” were so irregular as to infer non-neutrality. “If this sounds familiar,” wrote Thapar, “it should.”
Like the Colorado Civil Rights Commission, which was so hostile to Jack Phillips, the Christian baker who refused to design a cake for a same-sex wedding, Shawnee officials “derided [Meriwether] and equated his good-faith convictions with racism.” Such hostility would be enough for Meriwether’s free exercise claim to survive a motion to dismiss, but there is more. Shawnee wasn’t applying a “neutral and generally applicable” non-discrimination law. Instead, wrote Thapar, the college appeared to be “using an evolving policy as a pretext for targeting Meriwether’s beliefs.”
But what about the Supreme Court’s shocking Bostock decision last summer? There the Supreme Court expanded the protections of federal employment anti-discrimination law to sexual orientation and gender identity. Thapar put the case in its proper context:
“A requirement that an employer not fire an employee for expressing a transgender identity is a far cry from what we have here — a requirement that a professor affirmatively change his speech to recognize a person’s transgender identity.”
Gender ideology brooks no dissent. Indeed, even the choice of words has been weaponized. Fortunately, judges like Amul Thapar and his colleagues on the Sixth Circuit have one word for the bullying tactics college administrators used to force professor Nicholas Meriwether to speak against his conscience: unconstitutional.