KingArthur10/CC BY-NC-ND 2.0
Shawnee State University theater
One of the latest skirmishes in the culture wars concerns the right of a professor to treat a transgender student unequally in classroom discussions. In a recent decision, a federal court of appeals was so unsympathetic to the student that it sloppily misstated the facts in the case and gave faculty a broad license to mistreat minorities.
Prof. Nicholas Meriwether of Shawnee State University, Ohio, refused to address a transgender student (referred to in court papers as “Doe”) according to her self-identification as a woman. Instead, while addressing all other students as “Mr.” or “Ms.,” he referred to the transgender student by last name only. When he was disciplined for discrimination, he sued, arguing that because of his religious beliefs he does not regard this student as woman and that it would be unconstitutional to compel him to say that she is. The U.S. Court of Appeals for the Sixth Circuit agreed, in a decision that has troubling implications for the law of hostile environment harassment.
Shawnee State had at first agreed to Meriwether’s proposal that he would call on the transgender student only by her last name, but the university then changed its position. It is easy to see why. Title IX prohibits “discrimination under any education program or activity” based on sex. In his complaint, Meriwether explains that he “refers to students in this fashion [that is, as “Mr.” or “Ms.”] to foster an atmosphere of seriousness and mutual respect that is befitting the college classroom.” By his own reasoning, that seriousness and respect (which, incidentally, had nothing to do with his religious beliefs) would not be available to the transgender student. She would be treated worse than any other student. Indeed, the magistrate judge found that the transgender student “dreaded participating” in Meriwether’s class “but felt compelled to do so because [he] graded students on participation” and that she “suffered significant psychological strain and distress” from the way he treated her.
If the court wants to talk about practicalities, it should think about what actually happens in the classroom.
The Sixth Circuit, however, admiringly declares that Meriwether’s rejected proposal “seemed like a win-win. Meriwether would not have to violate his religious beliefs, and Doe would not be referred to using pronouns Doe finds offensive.” The school’s objection, that the proposal would single out Doe and treat her worse than any other person in the classroom, is not mentioned in the court’s opinion.
The court correctly observes that the test the Supreme Court laid down in an earlier case, Pickering v. Board of Education, allows the state to restrict what is said “only when its interest in restricting a professor’s in-class speech outweighs his interest in speaking.” But then it makes the implausible leap that schools have no legitimate interest in protecting their students from mistreatment unless that mistreatment violates federal law. The court seizes on statements by some administrators that Meriwether’s conduct did not create a hostile environment, but if administrators get to decide what constitutes a hostile environment, no university will ever be guilty of a violation.
Moreover, whatever the law requires, schools must have the capacity to protect students from humiliation on the basis of race, sex, or transgender status, even if some members of the faculty have strong desires to the contrary. You will search the Sixth Circuit’s opinion in vain for any acknowledgement of the discriminatory burden on the student. The court appears to think that schools have no legitimate interest in promoting an environment conducive to learning. It does not seem to notice that its logic equally applies to racist faculty, who might object to respectful treatment for African Americans.
The dean informed Meriwether in an email of the school’s counterproposal: “Every student needs to be treated the same in all of your classes. In other words, the policy seeks to ensure that what is done for one student is done for all to avoid issues of discrimination. This regards names, pronoun usage, and most any other matter.”
This solution would have been entirely respectful of Meriwether’s compunctions. He could refer to all students by first or last names only, without using gendered titles for any of them. That would have treated all students equally, and it would not have required him to say anything he did not believe. It was an admirable attempt to reconcile an intractable cultural conflict.
Meriwether, however, construed the dean’s proposal to say that he would be in violation of Shawnee State's non-discrimination policies “(1) if he referred to Doe using masculine pronouns; or (2) if he stopped using pronouns in reference to Doe but continued to use sex-based pronouns for all other students; or (3) if he referred to transgender students by their name of choice but continued to refer to all other students by their last names and titles (i.e., ‘Mr.’ ‘Ms.,’ ‘Miss,’ or ‘Mrs.’).” His choices, he thought, were “(1) stop using pronouns altogether ... ; or (2) use pronouns that refer to each student's self-asserted gender identity.”
It would have been good if he had checked with the dean to make sure that this was what the dean meant. Instead, he simply adopted an unusually onerous interpretation of what the dean had told him. Then the Sixth Circuit uncritically embraced that interpretation, even though it had never been endorsed by the court below, which normally has the job of finding the facts in a case.
The Sixth Circuit’s rejection of this option depended crucially on the difficulty of doing without pronouns in ordinary speech: “such a system would be impossible to comply with, especially in a class heavy on discussion and debate. No ‘Mr.’ or ‘Ms.’ No ‘yes sir’ or ‘no ma’am.’ No ‘he said’ or ‘she said.’”
But that is not the only way to construe the dean’s instruction. It is indeed hard to remove all pronouns from one’s speech. It is, on the other hand, very easy to eliminate titles, and that is what the dean was asking for. One can easily avoid misgendering a single student. Just don’t use titles for anyone. That is all that the dean asked.
If the court wants to talk about practicalities, it should think about what actually happens in the classroom. It is mighty conspicuous if you refer to every student except for one as “Mr.” or “Ms.” But pronouns are used sporadically and interchangeably with proper names. Avoiding gendered pronouns with respect to a single student, while continuing to use them for everyone else, is inconspicuous. Referring to someone by their name, rather than by a pronoun, has no derogatory implications. It is actually a good way to communicate that the student’s contribution to the discussion is valued and recognized–or, at least, that the teacher remembers their name.
So the court is mistaken: The policy is easy to comply with. It’s hard to believe that no one ever pointed this out to Meriwether. The university is not at fault because Meriwether misunderstood its policy. It is hysterical to claim, as the court does, that what the school actually proposed imposed an “orthodoxy,” “silenced a viewpoint,” “punished a professor for his speech,” cast “a pall of orthodoxy over the classroom,” sought to “compel ideological conformity,” or threatened to “transform institutions of higher learning into ‘enclaves of totalitarianism.’”
Eugene Volokh observes that “whether a university may forbid faculty members from referring to students using the pronoun that the student rejects remains an open question. This case only deals with faculty members declining to use the pronoun the student prefers, and using the student's name instead.” Another open question is whether Shawnee in fact violated the First Amendment. All we know is that it would have violated the First Amendment if the facts had been different than they were.
The court’s decision, however, is supposed to be based on a careful review of the record. The university lost, and doubtless will now have to settle for some significant sum of money, because the Court of Appeals carelessly misconstrued the facts of the case, and angrily denounced the university for what it had not done.
