The College Fix

Under university’s view, it could force him to use racist language, too

A public university’s lawyer bumbled his way through oral argument last week on whether his taxpayer-funded client can force a philosophy professor to address a male student with female pronouns.

Sharp questioning by the 6th U.S. Circuit Court of Appeals repeatedly left Keating Muething’s Paul Kerridge at a loss for words, including on whether Ohio’s Shawnee State University could similarly force a Jewish professor to address a student as “My Fuhrer.”

Judge Joan Larsen, one member of the three-judge panel, expressed skepticism that Prof. Nicholas Meriwether (above) could easily implement the university’s proposed alternative: omitting pronouns entirely from class and referring to students only by first or last name.

It would be challenging to give a “Socratic lecture” without using “he” and “she,” especially in a class of hundreds of students, she said. Kerridge answered that a professor could use “your colleague” as an alternative to pronouns, whose “unequal use” in Meriwether’s class is the problem.

Meriwether lost his First Amendment case at the trial court earlier this year. U.S. District Judge Susan Dlott (below) ruled that his quarter-century practice of addressing students as “miss” and “mister” was not “a matter of intellectual debate” on gender identity protected by the First Amendment, but rather a “teaching method” that was “only of personal interest” to him.

MORE: Judge upholds compelled speech of Meriwether

Dlott didn’t even frown on the university’s refusal to let Meriwether express his objection to forced usage of incorrect pronouns in the class syllabus.

Judge Larsen expressed astonishment at an argument by Adam Unikowsky, counsel for the “intervenors” including the transgender student at the heart of the dispute. Informed by Unikowsky that a syllabus is an “official university document” rather than a faculty product, Larsen said she had never considered a syllabus “university-mandated” in all her years as a law professor: “It just seems odd to me” that Unikowsky has this view.

The Alliance Defending Freedom, which is representing Meriwether, believes Thursday’s oral argument went well for his case.

Shawnee State’s Kerridge gave “surprising answers” to questions such as whether the university could also force a professor to open every class with a Black Lives Matter statement, Vice President of Appellete Advocacy John Bursch told reporters on a conference call after oral argument.

Meriwether told reporters that his academic field of philosophy deals with what a person believes is reality. He cannot “express a view of reality I do not hold,” and a university is not supposed to be “an assembly line for one type of thought.”

Like ordering coaches what to say about Black Lives Matter

The three-judge panel included a short-lister for President Trump’s Supreme Court nominations, Amul Thapar, who again demonstrated his reputation as an active questioner in oral argument. Like newly confirmed Justice Amy Coney Barrett, he penned a ruling in favor of accused students in campus sexual assault proceedings.

Oral argument delved into Supreme Court precedents on public employees’ speech (1968’s Pickering and 2006’s Garcetti), compelled union fees (2018’s Janus) and peer-on-peer harassment in schools (1998’s Davis).

It also included a 2012 ruling penned by 6th Circuit Judge Jeffrey Sutton, which reinstated a lawsuit by a Christian student expelled from a graduate counseling program for refusing to counsel a client about a gay relationship.

Bursch, arguing for Meriwether, told the panel that the professor “tried repeatedly to find a compromise” that would satisfy Shawnee State, but officials rejected “every alternative,” including what’s already in his syllabus.

Judge Dlott ignored 6th Circuit precedent on professors’ speech rights while teaching and wrongly decided his pronoun practice wasn’t a matter of “public importance,” contradicting Janus, the lawyer claimed.

MORE: Shawnee State says it can threaten professor for using wrong pronoun

If Garcetti doesn’t apply to Meriwether’s conduct – meaning his speech wasn’t “pursuant to his employment duties” – Thapar asked how far that logic would extend. Bursch said the professor’s protected speech probably wouldn’t extend to administrative duties such as “picking the course book.”

But “at a minimum,” the lawyer continued, his speech should be subject to the so-called Pickering balancing test, which weighs a public employee’s speech on a “matter of public concern” versus the employers’ interest in “the efficiency” of its public services.

What if the administration asked Meriwether to do a “roll call” and use students’ preferred pronouns, Thapar asked: “Are you really teaching? Where is that line?” Judge Sutton concluded a grade is a function of teaching, but “communicating that grade to the student” is administrative, Bursch said: The distinction is whenever “the university is putting words into the professor’s mouth.”

Thapar asked whether the situation would be the same with a basketball coach. While many schools have told coaches to talk about Black Lives Matter with players, they couldn’t force coaches to share the university’s view without sharing their own, Bursch said, noting that Shawnee State banned Meriwether from stating his own view against preferred pronouns in the syllabus.

The lawyer clarified to Judge David McKeague that Meriwether still couldn’t be compelled to speak the university’s message even if it let him object in the syllabus, however: The professor was “just inquiring” when he proposed a compromise.

MORE: Shawnee State bans ‘racial’ and ‘offensive’ discussions on campus network

Teaching tips from the Apostle Paul

Citing the Apostle Paul’s view that women “should learn in quietness and full submission,” Judge Larsen asked if a Christian professor like Meriwether could stop calling on female students altogether and justify it as religious freedom. Not calling on women would be “denying an educational benefit” in violation of Davis, Bursch said, emphasizing that the question should be the topic’s relation to the course.

“This is the easiest possible case” for the Pickering test because Meriwether regularly talks about issues relevant to gender identity in his philosophy courses, the lawyer continued: It’s not like the University of Wyoming’s new focus on microaggressions in a geosciences course.

The 6th Circuit has already protected far more offensive in-class speech in a 2001 ruling known as Hardy, Bursch (left) emphasized when judges asked him where to draw the line.

When Thapar noted that the university claimed it would have to tolerate racist rhetoric from professors if it protected Meriwether’s pronoun practice, the professor’s lawyer said the court had already protected such racist language as long as it wasn’t “gratuitous.” The black student in Hardy alleged a hostile environment from the professor’s discussion of slurs that “marginalize minorities,” but the 6th Circuit disagreed.

Even if the university simply banned faculty from using “pronouns period,” as Thapar hypothesized, that would be unconstitutional, Bursch argued: “Compelled silence is still compelled speech.” Clearly pronouns have “meaning,” he said, noting the transgender student’s counsel uses preferred pronouns on his website: “It’s more than just identifying the student.”

Bursch distinguished Title IX from Title VII when Thapar asked how this case compared to the Supreme Court’s recent ruling in favor of a transgender employee of a funeral home. While the high court said the government has a compelling interest in preventing sex-stereotyping, Title IX is different because it requires universities to consider sex. That’s why the Justice Department opposes biological males in female students’ sports, he said.

Only some religious views matter?

Kerridge, representing the university, had a tough time convincing judges that Meriwether’s expressed views on gender identity did not constitute a protected “academic discussion.”

If Garcetti has an implied academic-freedom exception that covers “substantive debate” on a given subject matter, then Meriwether can share his views on gender identity when relevant to the class discussion, the lawyer said.

But announcing his view on the syllabus isn’t an academic discussion, Kerridge told Thapar, because the content of the view “is necessarily a violation of the discrimination policy.” Judge McKeague said the lawyer had just contradicted himself, but Kerridge said he was speaking about “a balanced academic debate” in the class session.

It must be “germane to the subject matter” of the lecture, and the syllabus “isn’t part of a lecture at all,” the lawyer said.

If germaneness is the threshold, what about Shawnee State requiring a professor to “praise the president of the university”? Thapar asked: What about requiring a math professor to open every class talking about Black Lives Matter in order to create a “non-hostile environment”?

MORE: Student officially changes personal pronoun to ‘His Majesty’

Larsen jumped in when Kerridge (right) said such a mandate was outside the faculty “job responsibility.” If there had been “racial tensions” on campus and administrators wanted every class to start with a BLM discussion – just as elementary schools often mandate the Pledge of Allegiance – “why is that outside the job description?” she asked.

Kerridge fumbled before arguing Meriwether was committing “in-class discrimination” by communicating a message against a specific student. At this point Thapar brought up Adolf Hitler.

If students get to pick their own titles, as in the “His Majesty” case at the University of Michigan, why couldn’t a university honor a student’s wish to be addressed as “My Fuhrer” by his Jewish professor? the judge asked. That would violate other federal laws as “objectively offensive” speech, Kerridge responded.

Thapar said that would mean religious views only matter sometimes: “I don’t see [the distinction] in the Constitution or somewhere else.”

Inadvertent versus ‘a pattern’ of pronoun slip-ups

When Kerridge kept emphasizing that the university gave the professor the option to use first or last names instead, Thapar went beyond Larsen’s practicality objection. Meriwether has been using traditional pronouns all his life, yet the lawyer is saying “one slip-up and he could be fired?”

Kerridge distinguished between “inadvertent slip-ups” followed by a quick correction and “a pattern of behavior [that] is consistent and repeatedly using pronouns in a way that is offensive.” Excusing his slip-ups only if he corrects them would be compelled speech, Judge McKeague interjected.

Showing the lawyer’s apparent unpreparedness for the hearing, Kerridge told Larsen he couldn’t answer her question about whether the university spoke to any student in Meriwether’s class other than the transgender student, Alena Bruening (left).

Kerridge corrected Thapar that the university argued it was “reasonable,” not compulsory, to adopt its preferred-pronoun policy because of Title IX, given the uncertainty of the law before the Bostock ruling against sexual-orientation discrimination.

Asked if the University of Notre Dame, a religious school, would have to impose a similar policy if Title IX compelled it, Kerridge said “yeah, absolutely.” Echoing a claim by a Michigan Tech official on Title IX’s supremacy, the lawyer told an incredulous Thapar that the First Amendment “just wouldn’t apply” to Meriwether’s case.

Syllabus ban is a ‘red herring’

Jenner & Block’s Unikowsky, intervening in the case on behalf of Bruening, also struggled to convince the judges that Meriwether’s speech was not protected.

He agreed “it seems outrageous to the First Amendment” to force a Jewish professor to use “My Fuhrer” because it would constitute a “loyalty oath,” which confused Thapar. “It’s very hard to see how [the Fuhrer address is] germane to the duties” of a professor.

Pressed by Thapar if he’s conceding the pronoun is a “communicative message,” Unikowsky resisted: “All it’s communicating is that there’s a statement coming for this individual.”

Larsen flipped the hypothetical: What if Shawnee State viewed sex as intrinsically biological and banned faculty from using students’ preferred pronouns? The lawyer said that wouldn’t be a First Amendment violation because “it’s not part of the curriculum.” He disputed that using titles was “part of the learning experience,” and thus curricular.

MORE: Public university says Title IX trumps the Constitution

Meriwether’s inability to protest university policy on the syllabus is a “red herring” because he wants to invalidate the entire nondiscrimination policy, Unikowsky (right) argued. He refused to concede to Thapar that the syllabus ban is a First Amendment violation.

That argument has a “Garcetti problem” because it’s a university document on course requirements: “It’s not the right forum to air your grievances.” Asked if Meriwether could simply object orally to the pronoun policy every day in class, Unikowsky said that wouldn’t be protected either. All his client insists on is to not be treated “differentially.”

Thapar returned to his question about Title IX and sex-based distinctions, asking if a Catholic school would be required to adopt a similar pronoun policy. The lawyer said it might have an exception under the Religious Freedom Restoration Act.

Affirming gender dysphoria is not ‘compassionate’

In his rebuttal time, Bursch said both his counterparts incorrectly described Shawnee State’s policy, which “doesn’t even mention pronouns” explicitly: Rather, it requires professors to address students how they demand, even as “Jesus Christ our Lord.”

There’s also no “debate” requirement for protection of in-class speech as Kerridge claims, Bursch said, citing the Hardy ruling’s rejection of “pure public debate” as the threshold. The university’s alternative to pronouns – using students’ names – still amounts to compelled silence, the lawyer added. And Bruening is the one seeking “differential” treatment by forcing Meriwether to abandon his sex-based pronouns.

Asked by Larsen if it would violate Meriwether’s “scruples” to address Bruening with an identifiably female name, Bursch said the professor “bent over backwards” to respect the student: The university rejected his compromise to use Bruening’s legal name.

The university has still never explained how Bruening was deprived an educational benefit as required to show a Title IX violation, given that the student passed Meriwether’s class with a good grade, Bursch said. And it has consistently assigned false motivations to the professor, who does not believe that affirming gender dysphoria is “compassionate.”

Every argument by the other counsels boiled down to one overriding principle, the lawyer said in the post-argument press call: Universities get to pick which messages faculty convey and do not convey, even when teaching, violating their “freedom of silence.”

MORE: Universities teach gender fluidity as fact to college students

IMAGES: Alliance Defending Freedom, KMK Law, Shawnee State University, Jenner & Block

Like The College Fix on Facebook / Follow us on Twitter