[Cross-posted from Justia]
By Vikram David Amar and Alan E. Brownstein
A few weeks back, in Meriwether v. Hartop, the United States Court of Appeals for the Sixth Circuit issued a broad First Amendment ruling in the area of so-called “academic freedom” enjoyed by university teachers. The case involves a philosophy professor (Nicholas Meriwether) who was punished by the public university he works for (Shawnee State University in Ohio, or University) for failing to comply with a University policy requiring teachers to address students by the students’ preferred pronouns. More specifically, Meriwether, a devout Christian who had a practice of using formal titles (Mr. or Ms.) in class when leading Socratic discussions to “foster[] an atmosphere of seriousness and mutual respect,” objected to having to use “feminine titles and pronouns” in addressing and referring to a student (described in the opinion merely as “Doe”) whom Meriwether described as someone “‘no one . . . would have assumed . . . was female’” based on . . . outward appearances. . .”
In response to complaints by the student, the University, after various back-and-forths with Meriwether, formally reprimanded him for failure to comply with the salutation policy, and warned that future violations would bring “further corrective actions” that could include pay reductions and termination. En route to the written reprimand, the University rejected at least two resolutions Meriwether proposed: (1) that Meriwether refer to Doe simply by her last name (even though, presumably, Meriwether would continue to use “Mr.” and “Ms.” in conversing with all other students); and (2) that Meriwether comply with the school’s policy and use students’ preferred pronouns but add a disclaimer in his syllabus “noting that he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity.”
After a faculty union grievance process (the faculty at Shawnee State apparently is unionized) did not bring him satisfaction, Meriwether filed suit in federal court bring claims under: (1) the Free Speech and Free Exercise Clauses of the First Amendment; (2) the Due Process and Equal Protection Clauses of the Fourteenth Amendment; (3) the Ohio Constitution; and (4) his contract with the University.
The federal district court dismissed all of Meriwether’s federal claims and declined to exercise jurisdiction over the supplemental state-law claims. The Sixth Circuit reversed as to the First Amendment causes of action, holding that Meriwether had stated a valid claim under both the Free Speech and Free Exercise Clauses of the First Amendment. In resolving the Free Speech issue (the only one we have space to address in this column), the Sixth Circuit panel held that although Meriwether is a public employee, the framework the Supreme Court has erected to govern, as a general matter, free-speech claims by government employees, spelled out 15 years ago in Garcetti v. Ceballos, does not apply because the Court in Garcetti explicitly declined to decide whether its framework should be used for “speech related to scholarship or teaching.”
Instead, said the Sixth Circuit, older cases from the 1950s and 1960s, involving the imposition of McCarthy-era loyalty oaths on all public employees, including public educators, spoke grandly about the importance of preserving academic freedom for people who teach and write in American universities, and thus suggest that the Garcetti framework (under which the category of on-the-job speech by public employees, in which Meriwether’s teaching would fall, would ordinarily receive little First Amendment protection) ought not be used in this setting.
Instead, the court applied the pre-Garcetti case of Pickering v. Board of Education, under which even on-the-job speech by public employees is protected if it involves a matter of public concern, unless the speech would impair a sufficiently strong interest the public employer has in the operation of the public entity in question. In ruling for Meriwether, the court, in grand fashion, observed:
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.
In our view, this was an unfortunate ruling in two important respects: it may have reached the wrong outcome on the facts, and in doing so it made some unnecessary and arguably questionable law on a big decision — the extent to which Garcetti should or should not apply to the public higher education setting.
As to the first question (the correctness of the ruling on its facts), we believe the Sixth Circuit erred for several reasons. For starters, even under the Pickering balancing test the court purported to apply (which protects public employee speech more than does the Garcetti framework), the University should have prevailed. The Sixth Circuit rejected as insufficient the University’s argument that its policy helped it steer clear of a hostile learning environment that might itself violate federal law.
But whether or not respecting students’ preferred pronouns is itself required by federal anti-discrimination law, isn’t it obvious that a university has a strong interest in promoting a sense of equal treatment and dignity among its students so that the learning environment in the classroom liberates students to focus on the content at hand without having to simultaneously process difficult feelings of exclusion or disrespect? And if that interest is important, one can see how Professor Meriwether’s proposed “compromises”—of using the last name only for Ms. Doe but using “Mr. and Ms.” for everyone else (thus singling Ms. Doe out for different treatment in a way the whole class sees and hears), or of noting his objection to the university’s pronoun-use policy in the syllabus that students like Ms. Doe must look at every class day of the semester —do not address the problem.
Indeed, if the Sixth Circuit were correct, would a faculty member have a First Amendment right to refer to women students by their first names and men by using “Mr. [last name]”? Or calling Blacks by their first name but Whites by “Mr. or Ms [last name]”? Certainly providing equal salutation treatment without regard to race or gender identification no doubt constitutes an important pedagogical interest as to which universities are entitled to significant deference. (It might be a more difficult question if the University had punished Meriwether for his private social media posts in which he railed against the policy’s unwisdom, since that would be one step removed from the classroom learning environment itself.)
Moreover, it is far from clear that a salutation—the way that students are addressed or called on in class or elsewhere — itself constitutes the kind of distinctive academic-speech activity that may ever justify significant First Amendment protection at all when undertaken by a public employee, regardless of the applicable doctrinal framework. Certainly and importantly, the Sixth Circuit never explained what is distinctive about salutations at a university that implicates the development of new knowledge or intellectual debates. Salutations are generic and are utilized throughout public institutions, including K-12 public schools, courtrooms, and the myriad situations where public employees address their clients or the general public. In all these circumstances, government would have substantial discretion in regulating the scope and form of salutations, without regard to an employee’s conscientious reluctance to abide by the state’s requirements. Special constitutional protection for academics engaged in activities that are functionally indistinguishable from the conduct of all other public employees and which bear no relationship to the reasons why academic freedom and freedom of speech at public universities might merit unique free speech treatment requires more of an explanation and defense than the court’s opinion provided.
Another way to put the point is this: Meriwether’s objection to following the school’s salutation policy was based on its conflict with his personal politics, not a conflict with the content or viewpoint of the class he was trying to teach. Indeed, if he were trying to make a pedagogical point about philosophy (his field) by using the way he addressed students as an example or illustration of a particular philosophical viewpoint, important questions would be raised about whether it is appropriate to enlist students as props, or unwilling performance artists, for professorial demonstrations. (Certainly in med school, for example, a professor could be prohibited from incorporating his unwilling students as subjects of experiments he were trying to demonstrate to the class.)
Pulling back the lens, as a general matter it may not make sense to construe salutations to be pure, content-based speech rather than essentially conduct-infused interactions in which speech plays the same relevant but non-substantive role that “speech acts” do in so many social interactions. When a teacher takes attendance to determine which students are present in the classroom, that seems more like a mechanical exercise than the expression of substantive content germane to the course curriculum. Similarly, when a teacher calls on students who raise their hand to speak, this avoids the conundrum of too many students trying to speak at the same time, but this practice itself contributes little if anything to the substantive subject matter of the course.
We recognize that there is an expressive dimension to salutations, but that is hardly dispositive. The question is whether the salutation is in essence a form of interaction that allows decisionmakers to identify and distinguish one person from another (a rather mechanical goal) rather than convey a substantive, much less viewpoint-based, message. Putting Garcetti aside, when the DMV finally calls your name to come forward to renew your driver’s license, would we remotely think the salutation there is protected speech for First Amendment purposes?
Finally and relatedly — and this may be among the most difficult question raised by this case and not addressed by the Sixth Circuit — how do we differentiate speech from identity discrimination for constitutional purposes? As suggested above, if a professor calls on White male students by addressing them as “Mr.” followed by their last names and calls on Black men and all female students using only their first names, the university would be permitted to punish that practice. One could argue that the university’s rules do impinge upon the professor’s freedom of speech and academic freedom liberties but that this infringement is justified by the public university’s strong state interest in prohibiting race and gender discrimination. (As noted above, if this is the right way to analyze the problem under a Pickering balancing framework, the Sixth Circuit gave no reason why the university’s interest shouldn’t prevail in the present case as well.)
But there is an alternative way to understand this conflict, that needn’t even require resort to compelling university interests. It is often the case that distinctions drawn between protected classes, even if expressive in nature, are construed to be discriminatory conduct that does not implicate free speech guarantees at all. For example, Title VII prohibits employment discrimination on the basis of religion. It does not prohibit employment discrimination based on secular belief systems. From a speech perspective, this statutory scheme constitutes viewpoint discrimination. The Court has repeatedly held, after all, that religion is a viewpoint of speech. But no one argues that Title VII abridges freedom of speech in this way. For the purposes of this civil rights statute, religion is understood to constitute an identity (protected against discrimination) not a subject or viewpoint of speech.
The same analysis could apply to the terms used to address a student. To the extent that ignoring students’ professed genders when calling on them in defiance of university regulations is construed to be a form of identity discrimination, that determination could displace free speech review of the university’s requirements — just as prohibiting discrimination against students on the basis of their religion when calling on them could be understood as legitimate enforcement of civil rights principles rather than an abridgment of the professor’s freedom of speech.
For these reasons, we think the court should have ruled for the University in any event. And if it had seen things this way, it would have had no occasion to address the big and vexing question whether the government-protective Garcetti framework applies in the education setting. There are certainly arguments cutting both ways on this. In Garcetti, the Court ruled that as long as “public employees [are] mak[ing] statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,” even if the matters on which they are speaking are of public concern.
To be sure, applying Garcetti to all academic settings would have pronounced effects in that no public educators would be protected by First Amendment academic freedom with regard to on-the-job speech. And deciding what is on-the-job speech is not always easy. The scope of what constitutes employee, as opposed to citizen, speech can be unclear. With regard to K–12 instructors, perhaps all of a teacher’s statements during class can be viewed as part of the job, but what of conversations with students out of class, during lunch period, or before the school day formally begins? More problematically, how do we determine the job parameters of university professors who are often expected — as part of the scholarship and service components of their job — to speak to government, the press, professional associations, and other audiences, and to publish articles and books for diverse dissemination?
Yet if Garcetti doesn’t apply, where does special First Amendment protection for public professors come from? Just as the Press Clause of the First Amendment has never been construed to give the institutional media special speech protections (and that is a good thing since the very idea of the institutional media has broken down due to the internet), so too it might be problematic to try to define and confer special protection on “professors.” (What about independent scholars at think tanks, and conspiracy theorists who purport to do scholarly research?)
The Sixth Circuit leaned a lot on cases from public educational institutions in which the Court rejected anti-subversive laws from two generations ago. But these cases should not be overread. The Government in these cases lost (and should have lost) because it failed to make any specific showings of disruption to government operations that the laws were addressing; instead, it was arguing that all civil service should be free of anyone who holds dangerous beliefs — not that a particular person’s belief, because of his or her particular job, was in fact or in all predictive likelihood going to interfere with government operations. Even the Garcetti framework and the leeway it affords government to regulate speech qua employee does not necessarily permit the government to use its employer status to “silence discourse, not because it [has any effect on] public functions but simply because superiors [in the government department or office] disagree with the content of employees’ speech” — precisely what government was trying to do during the early Cold War. So with or without application of Garcetti, those cases would have come out the way they did, and thus they don’t really offer much clear support for an academic freedom exception to generic First Amendment doctrine.
Finally, we note another way in which the federal courts in this case perhaps needlessly waded into this thicket. The district court declined to address Meriwether’s claims under the Ohio constitution or his contract with the University. We recognize that federal courts may not feel they are the best institutions to forge new state-law paths. But federal courts can make use of devices like certification of questions of law to state supreme courts. And in many respects these non-First-Amendment sources of law — especially state-law definitions of tenure and the like — may be better and more durable fonts of academic freedom protections than First Amendment doctrine. If public universities want to recruit and retain top-flight academics, they will likely have to promise certain expressive leeway (something implicit in the Sixth Circuit’s reference to the tradition of intellectual diversity and freedom in American higher education) and should be held to their promises. But if other public educational institutions choose not to make such promises, it is not clear that federal courts should be fashioning First Amendment law to force them to so do. Finally, judges need remember that rules empowering faculty members against administration rules can cut both ways. If more progressive administrations can’t rein in more conservative faculty practices, neither can conservative legislatures and boards of governors rein in more progressive professors.
