Wednesday, May 19, 2021

The Sixth Circuit Protects a Professor's First Amendment Right to Abuse His Students

 by Sherry F. Colb

Two months ago, the U.S. Court of Appeals for the Sixth Circuit, in an opinion by Judge Thapar, ruled that a professor at a state institution has a First Amendment free speech right to deliberately misgender his student. I want to suggest here that the Sixth Circuit’s decision was not just wrong but outrageous.

As a professor, I am a big supporter of academic freedom. Whenever I hear a story about a professor saying something offensive in (or sometimes outside of) the classroom and then getting into trouble, I typically find myself on the side of the professor’s right to free speech. If academic freedom and free speech more generally mean anything, they mean that people can voice viewpoints that others find offensive, in teaching, in scholarship, and otherwise. 

I am dismayed by news that that a professor at one or another university has “quit” after failing to fall in line regarding some controversial issue. I might disagree with what the professor has said or done (and I often do), but the “correct” viewpoint cannot be so fragile as to wilt in the face of a dissenter. The answer to offensive speech is usually more speech.

How we address one another in class, however, is a very different matter. Consider some examples unrelated to gender identity and pronouns. Say Professor Misanthrope wants to call all of his male students “Mr. Dick” and all of his female students “Ms. Cunt.” Is that protected speech under the First Amendment? Does the school really have to tolerate Professor M’s behavior while the students in his class absorb his deliberate insults day after day? Does the First Amendment truly mean that schools cannot require professors to behave courteously towards their students? Does this same freedom extend to students? May students address their professors as “Stupid Fuck”? Must professors just continue their lectures after being addressed in that way?

Imagine how Court of Appeals judges might feel if this right to insult people extended to lawyers in their courtrooms. Attorneys could then come in and address “Judge Transphobe,” “Judge Clueless,” and “Judge Halitosis.” Judges know, of course, that however often these nicknames cross the minds of litigants, they will never actually say them out loud because judges are in a position to punish them, not only with contempt sanctions, but with a ruling against their clients. 

Consider another example. All of us know someone who likes to say obnoxious things for no apparent reason. One hopes that such people simply breeze in and out of our lives so we can forget them quickly. But one of the things that they like to say in defense of their gratuitous cruelty is that “I’m just being honest!” As though kind and civil people are dishonest because they don’t go out of their way to insult others.

The Sixth Circuit judges, two appointed by President Pussygrabber, might have a difficult time identifying with the student in the Meriwether case. They instead imagine the poor victim of repression, forced to say Ms. Doe instead of saying Mr. Doe or Doe to express his opposition to what he calls “transgenderism.” But I can imagine being a law student at a state school and having a professor call me “Mr. Colb” because my clothing was not especially feminine and I did not tend to wear makeup. 

I would be mortified and would probably approach the professor after class, like Ms. Doe did, and say (or “demand,” as the Sixth Circuit put it), “please call me Ms. Colb because I am female.” If he then insisted that he doesn’t believe in real women wearing baggy jeans and not wearing makeup and that his religion tells him that women are supposed to make themselves attractive to men, I would hope that no court would say he has a First Amendment right to call me Mr. Colb. Indeed, before the Sixth Circuit ruling, I would have thought the suggestion too ridiculous to even turn into a hypothetical question on a law school exam.

The difference, the judges might say, is that if a cis-gender woman wants to be called a woman, then there is no controversy about that. On the other hand, Ms. Doe has asked her professor to call her by a gender that conflicts with the traditional understanding of what makes a person a man or a woman. That is true, and Professor Meriwether is free to make arguments, in his scholarship, in the faculty lounge, and in his classroom, “against transgenderism.” What he should not be free to do is target a specific student and insult that student as a means of expressing his opposition to “transgenderism.” 

Another analogy might be to a professor who wishes to call married female students by their “married names,” notwithstanding the women’s choice to go by their so-called “maiden names” (which I like to call their “virgin names” because, hey, I’m just being honest). I would hope that professors would have to stop calling Roe’s wife “Mrs. Roe” if she goes by the name “Smith.” We are not free to impose our political views on the people in our classrooms by calling them names. Similarly, if a student wishes to be called “Ms. Smith,” the professor should not insist on calling her either “Miss Smith” or “Mrs. Smith” because he doesn’t believe in Ms.

A school should be able to demand that its professors treat its students with respect. It should, for that matter, be able to demand that its students treat its professors with respect (and thus, in response to Judge Thapar’s actual question at oral argument, no student could require a Jewish professor to call the student “Mein Fuhrer”). I would think that academic freedom would thrive rather than shrivel in an atmosphere of civility.


Joe said...
This comment has been removed by the author.
tjchiang said...

As I read it, the sixth circuit was less saying that the professor has the right to abuse his students by calling them whatever he wants in class, and more saying that he can protest the university‘s policy in his syllabus, even if that protest will be taken (accurately) as reflecting the professor’s hostility toward transgendered students. And as a matter of academic freedom I have some sympathy for that argument.

Joe said...

I will replace my first remark.

First, simply put, the use of the right pronoun here would be a sign of respect that would be an appropriate time, place and manner rule for this specific context.

The professor pushed back and argued interfered with his religious beliefs. But, this is still a valid neutral rule in such a public setting.

The professor then offered various problematic compromises that were rejected. The opinion here, however, suggests one of his compromises involving how he would specifically address the student was acceptable.

So, it wasn't just a syllabus statement. The opinion suggested the matter wasn't really important. Note, e.g., "Shawnee State’s purported interest in complying with Title IX is not implicated by Meriwether’s decision to refer to Doe by name rather than Doe’s preferred pronouns."

The professor had various means to publicly dissent from the policy without putting it in his official syllabus. It is unclear how far one can take that. If someone has a course in race relations, is there a constitutional right to include anti-black statements in the syllabus handed to each student?

But, if the opinion truly was limited to that one issue -- it covers much more ground including an allegation of religious discrimination -- it would be much more narrow.

RationalOutlook said...

There seems to be no limiting principle here. How do we determine what a professor can be forced to say to address a person while in class? What if a student wanted to be addressed as something that even you think is ridiculous (e.g. "President of the US", or "King Arthur" or "Leaf Blower")?

How do you distinguish between the current case and the case I outlined above? Is it that in one case the student really believes they are of a particular gender? But, there are people who genuinely believe to be a cat or have two spirits, etc.

Joe said...
This comment has been removed by the author.
Sherry F. Colb said...

There will be some difficult cases, to be sure, but it seems to me that a professor insisting on calling me "Mr. Colb" and a professor insisting on calling the student in the case "Mr. Doe" are far more similar to each other than a student asking a professor to call them POTUS or King Arthur is to either one. The professor's refusal to call the student Ms. Doe is an insult to the student. To give you an example of how obvious it is that the professor is name-calling (rather than simply expressing a viewpoint), consider the fact that Ben Shapiro, celebrated conservative figure, has said that even though he strongly believes that anatomical sex/sex assigned at birth is the only sex, if he is meeting with a trans individual for an interview or a conversation, Shapiro will address them the way they wish to be addressed, out of respect and a desire to avoid insulting them. If Ben Shapiro can make this gesture of courtesy (despite the fact that he would not call anyone POTUS or King Arthur), then so can Professor Meriwether, without fear of a phantom slippery slope. As a general matter, I allow my students to let me know how to address them, and I let them know how to address me. I have made gender errors over the years, and I have gladly corrected them (and invited students to alert me when I make these errors). So far, at least, no one has asked me to call them by whichever mode of address we use for a cat or a leaf blower.

RationalOutlook said...

The point where I disagree is that the cases that arise can be distinguished in an objective or principled way to be easy or difficult (or something in between).

Determining whether one should address a person who genuinely feels he/she is X and wants to be addressed as X is an inherently value-laden enterprise, even in what you think it's an easy case (but one that is difficult for others): that of gender.

Perhaps we may point towards societal acceptance or DSM (which is updated as societal attitudes change, as it involves value judgments too), but that is hardly principled (I would say not at all principled). The sin of the Christian professor here just seems to be that he hasn't changed his values quickly enough to be consistent with the dominant societal position at least in the US.

If I were a professor, I would use the "preferred pronouns", but we here aren't really discussing what's the best thing to do, rather *whether the government should force a professor* to use the desired form of address. Conditioning First Amendment rights based on societal attitudes is not a great idea. But, I hope that if judges do determine that it's mandatory to use the correct address in class, they do so unconditionally and not based on current societal attitudes (maybe there could be consideration of practicality, if someone wanted to be addressed by a really long name) -- so if someone attests to genuinely being a cat and wants to be addressed "cat" that should be enforced as much as any other address.

RationalOutlook said...


whether the government should force a professor -> whether the government (construed as the executive and the legislative branches) should be allowed by the courts to force a professor

if judges do determine -> if judges in other courts do determine