Nicholas Meriwether v. Francesca Hartop
21a0071p.06 (2021)
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Rule of Law:
The First Amendment's Free Speech Clause protects public university professors' academic speech, including their use of pronouns in the classroom, from compelled speech under the Pickering-Connick framework, which assesses whether the speech is on a matter of public concern and if the professor's interest outweighs the university's; the Free Exercise Clause also protects professors from religious hostility and non-neutral application of policies, requiring strict scrutiny.
Facts:
- Nicholas Meriwether, a philosophy professor at Shawnee State University for 25 years, is a devout Christian who believes that God created human beings as either male or female and that sex is fixed at conception.
- In 2016, Shawnee State University emailed faculty informing them they had to refer to students by their “preferred pronoun[s]” and confirmed that professors would be disciplined for non-compliance regardless of moral or religious objections.
- Meriwether approached his department chair, Jennifer Pauley, to discuss his concerns, and Pauley expressed derisive and scornful views on Christians and the presence of religion in higher education.
- In January 2018, during a Political Philosophy class where Meriwether used the Socratic method and addressed students formally as “Mr.” or “Ms.,” he addressed a student, Doe, as “sir,” not knowing Doe's preferred gender identity.
- After class, Doe approached Meriwether, demanded to be referred to as a woman using feminine titles and pronouns, and became hostile, threatening that Meriwether would be fired.
- Meriwether reported the incident to university officials, and Dean Milliken initially advised him to eliminate all sex-based references, but later accepted Meriwether’s compromise to refer to Doe using only Doe’s last name.
- Doe remained dissatisfied and complained again, leading Dean Milliken to inform Meriwether that he must address Doe as a woman, and after Meriwether accidentally used “Mr.” for Doe, Milliken reiterated disciplinary threats and rejected Meriwether's proposal for a syllabus disclaimer about his religious beliefs.
- Shawnee State University placed a formal written warning in Meriwether’s file after a Title IX investigation concluded he created a hostile environment, and Provost Jeffrey Bauer upheld the disciplinary action and later denied Meriwether’s grievance, at one point laughing when Meriwether’s religious beliefs were explained.
Procedural Posture:
- Nicholas Meriwether filed a lawsuit in the United States District Court for the Southern District of Ohio at Cincinnati, alleging violations of his First and Fourteenth Amendment rights, the Ohio Constitution, and his employment contract.
- Doe and Sexuality and Gender Acceptance (SAGA) moved to intervene, and the magistrate judge granted their motion.
- The defendants and intervenors filed separate motions to dismiss Meriwether’s claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
- The magistrate judge recommended dismissing all of Meriwether’s federal claims and declining supplemental jurisdiction over his state-law claims.
- Meriwether objected to the magistrate’s report and recommendation, but the district court adopted it in full.
- Meriwether appealed the district court’s decision to the United States Court of Appeals for the Sixth Circuit, except for the dismissal of his equal-protection claim.
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Issue:
Does a public university violate a professor's First Amendment rights to free speech and free exercise of religion by disciplining him for refusing to use a student's preferred gender pronouns, when the professor's decision stems from sincerely held religious beliefs and pedagogical choices on a matter of public concern?
Opinions:
Majority - Thapar, Circuit Judge
Yes, a public university violates a professor's First Amendment rights to free speech and free exercise of religion by disciplining him for refusing to use a student's preferred gender pronouns when the professor's decision stems from sincerely held religious beliefs and pedagogical choices on a matter of public concern. The court first clarified that the Supreme Court's Garcetti v. Ceballos decision, which generally limits public employee speech rights, does not apply to speech related to scholarship or teaching in the academic setting, as established by precedent like Sweezy v. New Hampshire and Keyishian v. Board of Regents, and reaffirmed by Sixth Circuit cases like Hardy v. Jefferson Cmty. Coll. This means professors at public universities retain First Amendment protections for core academic functions. Applying the Pickering-Connick framework to Meriwether’s free speech claim, the court found that his refusal to use gender-identity-based pronouns constituted speech on a "matter of public concern" because it conveyed a viewpoint on gender identity, a topic of "contentious political and social debate." The court balanced Meriwether's interest in academic freedom, freedom of expression, and the protection against compelled speech, along with students' interest in diverse viewpoints, against the university's interest in preventing discrimination. It found Meriwether's interests stronger, noting his proposed compromise of using last names and the absence of evidence that his actions created a hostile learning environment or impeded his duties. The university's purported interest in complying with Title IX was not sufficiently implicated, as his conduct did not deny educational benefits or opportunities. Regarding the Free Exercise Clause, the court determined that Meriwether plausibly alleged Shawnee State's application of its policy was not neutral. This non-neutrality was evidenced by Department Chair Jennifer Pauley's alleged hostility towards Meriwether's religious beliefs, Provost Jeffrey Bauer's open laughter and refusal to discuss religious aspects during the grievance hearing, and the university's shifting rationales for discipline and accommodation policies. Such hostility and procedural irregularities allowed for an inference that the university was not applying a neutral policy but was targeting Meriwether's religious convictions. Because the policy was not neutral, it triggered strict scrutiny, which the university did not argue it could meet. The court also rejected the argument that the university's offer to avoid all pronouns was a viable alternative, calling it a "Hobson's Choice" that would effectively compel silence on his beliefs and be practically impossible to follow. The due process vagueness claim was rejected because Meriwether was on notice of the policy's application to his conduct.
Analysis:
This case significantly reinforces the academic freedom of public university professors, explicitly carving out an exception to Garcetti v. Ceballos for in-class speech and scholarship. It establishes that universities cannot compel speech from professors on controversial matters, even under the guise of non-discrimination policies, if those policies are applied with religious hostility or lack neutrality. The ruling is crucial for protecting professors' expressive rights on sensitive social issues, potentially limiting universities' power to enforce ideological conformity in the classroom and ensuring diverse viewpoints are tolerated and debated.
