Shawnee State University Can’t Force Professor to Use Speech with Which He Disagrees.
The U.S. Court of Appeals for the Sixth Circuit ruled unanimously that Shawnee State could not discipline a professor for failing to engage in speech with which he strongly disagrees.
Nicholas Meriwether, a philosophy professor and a Christian, sued Shawnee State, claiming that its mandate to use terms that conflict with biology infringed on his religious beliefs.
Excerpts from the Decision.
(I have copied below several key paragraphs from the decision. I have omitted most of the case citations to reduce the word count. You’re welcome!)
Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment.
Professor Meriwether is also a devout Christian. And, like many people of faith, his religious convictions influence how he thinks about “human nature, marriage, gender, sexuality, morality, politics, and social issues.” Meriwether 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.” He also believes that he cannot “affirm as true ideas and concepts that are not true.”
Freedom of Speech Includes Freedom from Compelled Speech.
“Universities have historically been fierce guardians of intellectual debate and free speech.” But here, Meriwether alleges that Shawnee State’s application of its gender-identity policy violated the Free Speech Clause of the First Amendment. The district court rejected this argument and held that a professor’s speech in the classroom is never protected by the First Amendment. We disagree: Under controlling Supreme Court and Sixth Circuit precedent, the First Amendment protects the academic speech of university professors. (italics added).
The First Amendment protects “the right to speak freely and the right to refrain from speaking at all.”. Thus, the government “may not compel affirmance of a belief with which the speaker disagrees.” When the government tries to do so anyway, it violates this “cardinal constitutional command.”
Courts have often recognized that the Free Speech Clause applies at public universities. Thus, the state may not act as though professors or students “shed their constitutional rights to freedom of speech or expression at the [university] gate.” Government officials violate the First Amendment whenever they try to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” and when they “force citizens to confess by word or act their faith therein.”.
Together, Sweezy and Keyishian establish that the First Amendment protects the free-speech rights of professors when they are teaching. As a result, our court has rejected as “totally unpersuasive” “the argument that teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction.” And we have recognized that “a professor’s rights to academic freedom and freedom of expression are paramount in the academic setting.” Simply put, professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship.
By forbidding Meriwether from describing his views on gender identity even in his syllabus, Shawnee State silenced a viewpoint that could have catalyzed a robust and insightful in-class discussion. Under the First Amendment, “the mere dissemination of ideas . . . on a state university campus may not be shut off in the name alone of ‘conventions of decency.’”. Rather, the lesson of Pickering and the Court’s academic-freedom decisions is that the state may do so only when its interest in restricting a professor’s in-class speech outweighs his interest in speaking.
Start with Meriwether’s interests. We begin with “the robust tradition of academic freedom in our nation’s post-secondary schools.” That tradition alone offers a strong reason to protect Professor Meriwether’s speech. After all, academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”. And the First Amendment interests are especially strong here because Meriwether’s speech also relates to his core religious and philosophical beliefs. Finally, this case implicates an additional element: potentially compelled speech on a matter of public concern. And “[w]hen speech is compelled . . . additional damage is done.”
Free Exercise of Religion
Meriwether next argues that as a public university, Shawnee State violated the Free Exercise Clause when it disciplined him for not following the university’s pronoun policy. We agree. The Constitution requires that the government commit “itself to religious tolerance.” Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rights Comm’n. Thus, laws that burden religious exercise are presumptively unconstitutional unless they are both neutral and generally applicable. To determine whether a law is neutral, courts must look beyond the text and scrutinize the history, context, and application of a challenged law. In this way, the Free Exercise Clause guards against “even subtle departures from neutrality on matters of religion.”
The Bottom Line of the Ruling.
Prof. Merriweather’s lawsuit now returns to the federal district court for a trial on the merits. Over 90% of civil suits settle prior to trial, so the odds are that this will as well.
On the other hand – Shawnee State may ask the U.S. Supreme Court to take up the matter. If the Court does, then justice (from my point of view, in any event) will again be denied by being delayed.
Thank you!
Michael Oswald
Michael Oswald is a follower of Jesus who lives in Boise, Idaho. Unless otherwise specified, the opinions expressed in this article are his own.
© 2021 Michael S. Oswald
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