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.