Meriwether Case of Administration Persecution

Case Details: Title, People, Numbers

• NICHOLAS K. MERIWETHER v. FRANCESCA HARTOP et al., with JANE DOE; SEXUALITY AND GENDER ACCEPTANCE as Intervenors-Appellees.
  
• Alliance for Defending Freedom's Travis C. Barham and others for Meriwether. D.C. Jenner and Block partner Adam G. Unikowsky for Intervenors. Notre Dame Prof. Gerard V. Bradley for an amicus. Lots of amici.
• No. 1:18-cv-00753— Susan J. Dlott, District Judge.
• Argued: November 19, 2020. Decided and Filed: March 26, 2021.
• Before: David McKeague, https://en.wikipedia.org/wiki/Amul_Thapar Amul Roger Thapar], and Joan Larsen. Opinion by Thapar.

Summary

Twenty-year veteran Shawnee State philosophy Professor Nicholas Meriwether responded to a male student’s question by saying, “Yes, sir.” After the class, the student approached Professor Meriwether, stated that he was transgender, and demanded that the professor refer to him as a woman, with feminine titles and pronouns, in accordance with university policy. Meriwether refused, even after the student threatened to sue and the University turned to its Title IX office and put a disciplinary letter in Meriwether's file and threatened him with possible future dismissal. Meriwether proposed various compromises, which were all rejected eventually.

Meriwether sued in federal court, alleging that the university violated his rights 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 district court referred the case to a magistrate judge Karen Litkovitz. Doe and Sexuality_and_Gender_Acceptance moved to intervene, and the magistrate granted their motion. Defendants and intervenors filed separate motions to dismiss. The magistrate recommended dismissal. The district court judge, Susan Dlott, agreed. Meriwether appealed everything except for dismissal of his equal protection claim, and won on everything except Due Process 3-0 in the Sixth Circuit, which remanded the case to Judge Dlott. The Sixth Circuit said the university violated his free speech and free exercise rights were violated if the facts were as he alleged them, but declined to find a violation of due process for vagueness given how clear the university's orders had been made to him.

The appellate decision, by Judge Anul Roger Thapar, which is the big document, is not only decisive, but clear and well written (except that he uses "id."). See https://adfmedialegalfiles.blob.core.windows.net/files/Meriwether6thCircuitOpinion.pdf. Thapar is quite a famous judge, the kind that is on Supreme Court short-lists. 

The Free Speech Holding (my boldface)

Under controlling Supreme Court and Sixth Circuit precedent, the First Amendment protects the academic speech of university professors. Since Meriwether has plausibly alleged that Shawnee State violated his First Amendment rights by compelling his speech or silence and casting a pall of orthodoxy over the classroom, his free-speech claim may proceed...

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.” Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 680 (6th Cir. 2001). And we have recognized that “a professor’s rights to academic freedom and freedom of expression are paramount in the academic setting.” Bonnell v. Lorenzo, 241 F.3d 800, 823 (6th Cir. 2001); see Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1188–89 (6th Cir. 1995).1

Simply put, professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship. See Hardy, 260 F.3d at 680. In reaffirming this conclusion, we join three of our sister circuits: the Fourth, Fifth, and Ninth. In Adams v. Trustees of the University of North Carolina–Wilmington, the Fourth Circuit held that Garcetti left open the question whether professors retained academic-freedom rights under the First Amendment. 640 F.3d at 562. It concluded that the rule announced in Garcetti does not apply “in the academic context of a public university.” Id.; see also Lee v. York Cnty. Sch. Div., 484 F.3d 687, 694 n.11 (4th Cir. 2007). The Fifth Circuit has also held that the speech of public university professors is constitutionally protected, reasoning that “academic freedom is a special concern of the First Amendment.” Buchanan v. Alexander, 919 F.3d 847, 852–53 (5th Cir. 2019) (quotation omitted) (analyzing the claim under the Pickering-Connick framework). 1Shawnee State and the intervenors suggest that our decision in Evans-Marshall v. Board of Education of Tipp City is to the contrary. 624 F.3d 332 (6th Cir. 2010). Not so. There, we held that '“the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools.” Id. at 334. We distinguished college and university professors and made clear that our holding was limited to schoolteachers. Id. at 343–44. Likewise, the Ninth Circuit has recognized that “if applied to teaching and academic writing, Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court.” Demers v. Austin', 746 F.3d 402, 411 (9th Cir. 2014). Thus, it held that “Garcetti does not—indeed, consistent with the First Amendment, cannot—apply to teaching and academic writing that are performed ‘pursuant to the official duties’ of a teacher and professor.” Id. at 412.

One final point worth considering: If professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity. A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet émigré to address his students as “comrades.” That cannot be. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe” such orthodoxy. Barnette, 319 U.S. at 642.

The Free Exercise of Religion Holding (my boldface)

Meriwether has plausibly alleged that Shawnee State’s application of its gender-identity policy was not neutral for at least two reasons. First, officials at Shawnee State exhibited hostility to his religious beliefs. And second, irregularities in the university’s adjudication and investigation processes permit a plausible inference of non-neutrality...

Meriwether “was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.” Masterpiece, 138 S. Ct. at 1732. And that, he at least plausibly did not receive...

While the hostility Shawnee State exhibited would be enough for Meriwether’s claim to survive a motion to dismiss, Meriwether has more. He alleges that various irregularities in the university’s investigation and adjudication processes also permit an inference of non-neutrality. We agree...

Courts have an obligation to meticulously scrutinize irregularities to determine whether a law is being used to suppress religious beliefs.' See Lukumi, 508 U.S. at 534–35; Monclova Christian Acad. v. Toledo-Lucas Cnty. Health Dep’t, 984 F.3d 477, 481–82 (6th Cir. 2020). And here, that scrutiny reveals signs of non-neutrality.

Documents

• The Complaint, S. Dist. Ohio (February 5, 2019).

• Motion to Intervene, S. Dist. Ohio (May 9, 2019, M.J. Litkovitz) This is interesting as a long opinion recommending granting a contested motion to intervene. It does not address whether the intervenor has the right to remain anonymous as "Doe".

• District Court Order Adopting Report and Recommendation, S. Dist. Ohio (February 12, 2020, Dlott, J.).

• 6th Circuit appellate opinion (March 26, 2021, Thapar, J.)