Free Speech on Campus
Law 620
Spring 2024
THE PRONOUN DISPUTE
(Excerpted, adopted, and adapted from the Harvard Law Review, nbcnews, and The Guardian. More details are in the 6th circuit’s decision, Merriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021).)
In 2016, Shawnee State University (a public school in Ohio) informed its faculty that its non-discrimination policy required all professors to refer to students using pronouns that “reflect[] a student’s self-asserted gender identity.”
But in 2018, when a transgender student, Jane Doe, asked her philosophy professor, Nicholas Meriwether, to refer to her with “she/her” pronouns, Meriwether declined Doe’s request. Meriwether, an evangelical Christian, claimed that compliance with the school’s pronoun policy would force him to violate his religious belief that gender is fixed at conception.
For the rest of the semester, Meriwether addressed all other students with the honorifics “Ms.” or “Mr.,” which he did to “foster[] an atmosphere of seriousness and mutual respect,” but referred to Doe by only her last name.
In response, Doe complained that she suffered disparate treatment—that referring to Doe alone by last name only was not “in line with [Meriwether’s] practice of addressing other female members in the class.” The school’s investigation concluded that Meriwether’s refusal to recognize Doe’s gender identity created a discriminatory and hostile learning environment in violation of Title IX: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Meriwether was issued a written warning instructing him to use students’ requested pronouns “to avoid further corrective actions.” Meriwether challenged the university’s disciplinary action. He alleged that it violated his First Amendment right to free speech, among other claims.
Shawnee State eventually paid Meriwether $400,000 to settle the dispute. The University explained that settling was an “economic decision” and “adamantly den[ied] that anyone at Shawnee State deprived Dr. Meriwether of his free speech rights…“ The University added:
Over the course of this lawsuit, it became clear that the case was being used to advance divisive social and political agendas at a cost to the university and its students. That cost is better spent on fulfilling Shawnee State’s mission of service to our students, families and community.
Readings
Keyishian v. Board of Regents, 385 U.S. 589 (1967)
Merriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021)
An interpretation of Academic Freedom, written by the (then) president of the American Association of University Professors (AAUP)
Class Presentations
Defend the position that public universities don’t interfere with the free speech rights of instructors when they require instructors to use pronouns that “reflect[] a student’s self-asserted gender identity.” (Samantha Abril, Jordan Al-Rawi, Matthew Corwin, Gabriella Franco, Jeremy Gartland)
Defend the position that public universities interfere with the free speech rights of instructors when they require instructors to use pronouns that “reflect[] a student’s self-asserted gender identity.” (Amanda Burch, Joseph Colarian, Marisa Galvez, Destiny Salcedo, Yuval Schnitkes)
This case-controversy focuses on instructors. What about students? Suppose a public university required students to use pronouns that reflect their classmates “self-asserted gender identity.” Would such a policy interfere with free speech? (Zoe Ginsberg, Gabriel Niforatos, Hannah Salman, Benjamin Schneider, Cameron Wong)
Defend the idea that the classroom in a university is a special enclave in which the University's obligation to help its students thrive and learn takes precedence over its obligations to free speech as such. (A kind of parens patrie idea.) (Hannah Barcus, Alexandra Holland, Soleil Montemurro, Alexandra Stanley, Alina Wan)