Is it the death of hostile environment harassment law? Northwestern lawprof Andrew M. Koppelman argues the point.

Andrew M. Koppelman, John Paul Stevens Professor of Law at Northwestern University, has written about the case as one of “free speech gone wild.” The Sixth Circuit “is being invited to invalidate the entire field of hostile environment harassment law,” he wrote last year in The Hill. If Meriwether prevails, “teachers at public colleges will have a constitutional right to subject their students to bigoted slurs. Much of anti-discrimination law would be deemed unconstitutional.”

What sort of monster academic would subject their students to bigoted slurs?

“Suppose a professor held a religious belief that African Americans are beings of an inferior order, who don’t deserve the honorific of ‘Mr.’ or ‘Ms.,’” he said. “Under the court’s reasoning, would that teacher have the right to address only the Black students by first or last name? If not, would the professor have the right to put a disclaimer on the syllabus explaining their beliefs?”

That’s not necessarily outlandish, in Koppelman’s assessment, as “race and sex are treated equivalently in federal antidiscrimination law.”

The issue arose when Ohio’s Shawnee State University philosophy prof Nicholas Meriwether called a trans student in his class “Sir.”

The case stemmed from a 2018 political philosophy class in which the professor, Nicholas Meriwether, called a trans woman “sir.” Meriwether said it happened accidentally, as no one informed him of the student’s preferred pronoun. After class, the student “demanded” to be called “Ms.,” like other female students, and threatened to have him fired if he didn’t, according to Meriwether’s lawsuit.

After a nice chat with the admins, Meriwether, a devout Christian, agreed to call the student by her last name, but the student rejected that fix as he continued to call other students “Mr.” or “Ms.,” thus stigmatizing the student by treating her differently. Meriwether then offered to comply with the student’s demands, but include in his syllabus that he was doing so under compulsion.

Meriwether’s dean rejected this as incompatible with the university’s gender identity policy. The case was referred to the university’s office for compliance with Title IX of the Education Amendments of 1972, which prohibits gender-based discrimination. Meriwether, who continued to refer to the student by her last name only, was found to have created a “hostile environment” for her via disparate treatment. (Again, he continued to call other students “Mr.” and “Ms.”)

Does Title IX mandate a “gender identity police”? Is it a “hostile environment” to use a different honorific than the student prefers? Does it rise to the level of “so severe, pervasive and objectively unreasonable” that it deprived the student of an education? Shawnee put a disciplinary warning in his file and ordered him to comply with its pronoun policy. Meriwether sued. The district court dismissed his action.

Getting students’ pronouns and titles right is a narrow issue that is part of a professor’s job description, not a matter of free speech, that court found.

Judge Amul Thapar, writing for a unanimous Sixth Circuit, disagreed.

“Universities have historically been fierce guardians of intellectual debate and free speech.” Speech First, Inc. v. Schlissel, 939 F.3d 756, 761 (6th Cir. 2019). 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. 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.

What distinguishes this action is whether honorifics and pronouns relate to academic freedom or job duties. This is one of those cases, problems, that never had to happen, whether because Meriwether, as the adult in the room, acquiesced to the child’s demand as a matter of ordinary courtesy or just to avoid the conflict that the student made clear would follow. Then again, the student didn’t try to get along here either.

After class, Doe approached Meriwether and “demanded” that Meriwether “refer to [Doe] as a woman” and use “feminine titles and pronouns.” Id. at1475. This was the first time that Meriwether learned that Doe identified as a woman. So Meriwether paused before responding because his sincerely held religious beliefs prevented him from communicating messages  about gender identity that he believes are false. He explained that he wasn’t sure if he could comply with Doe’s demands. Doe became hostile—circling around Meriwether at first, and then approaching him in a threatening manner: “I guess this means I can call you a cu–.” Id. Doe promised that Meriwether would be fired if he did not give in to Doe’s demands.

The circuit held that acquiescing to such demands is not just a job duty, but gives rise to a plausible violation of Meriwether’s First Amendment rights.

To determine whether speech involves a matter of public concern, we look to the “content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147–48. When speech relates “to any matter of political, social, or other concern to the community,” it addresses a matter of public concern. Id. at 146. Thus, a teacher’s in-class speech about “race, gender, and power conflicts” addresses matters of public concern. Hardy, 260 F.3d at 679. A basketball coach using racial epithets to motivate his players does not. Dambrot, 55 F.3d at 1190. “The linchpin of the inquiry is, thus, for both public concern and academic freedom, the extent to which the speech advances an idea transcending personal interest or opinion which impacts our social and/or political lives.” Id. at 1189.

Meriwether did just that in refusing to use gender-identity-based pronouns. And the “point of his speech” (or his refusal to speak in a particular manner) was to convey a message. Id. at 1187. Taken in context, his speech “concerns a struggle over the social control of language in a crucial debate about the nature and foundation, or indeed real existence, of the sexes.” Professors’ Amicus Br. at 1. That is, his mode of address was the message. It reflected his conviction that one’s sex cannot be changed, a topic which has been in the news on many occasions and “has become an issue of contentious political . . . debate.” See Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1051 (6th Cir. 2001).

But what of the mandate of Title IX that the college not allow its students to be subject to harassment?

Finally, Shawnee State and the intervenors argue that Title IX compels a contrary result. We disagree. Title IX prohibits “discrimination under any education program or activity” based on sex. 20 U.S.C. § 1681(a). The requirement “that the discrimination occur ‘under any education program or activity’ suggests that the behavior [must] be serious enough to have the systemic effect of denying the victim equal access to an educational program or activity.” Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 652 (1999); see Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 362 (6th Cir. 2012). But Meriwether’s decision not to refer to Doe using feminine pronouns did not have any such effect. As we have already explained, there is no indication at this stage of the litigation that Meriwether’s speech inhibited Doe’s education or ability to succeed in the classroom.

Not only is the question of whether mandating use of preferred personal pronouns and honorifics a matter of sufficient controversy to invoke First Amedment rights, but it is not necessarily so “severe” as to inherently inhibit a student’s ability to obtain the educational benefit Title IX protects.