Beyond Garcetti

In the case of Meriwether v. Shawnee State University, the Sixth District Court of Appeals has now reversed the previous rulings in the case. The previous rulings in the case, following Garcetti v. Ceballos had held that public University and College Professors had no First Amendment rights in the classroom whatsoever. Now the Sixth District Court has joined other Federal District Courts in affirming that speech by public University and College Professors in the classroom is protected when they speak on matters of public concern. Though I am relieved that the Sixth District Court has upheld the First Amendment with respect to speech by public College and University Professors in the classroom, there are aspects of this ruling that require further clarification. Firstly, I think the Court is wrong to argue that some forms of speech in the classroom cannot be compelled when they violate a Professor’s beliefs. In some very narrow circumstances, Universities can and must compel some forms of speech. Secondly, in my view, how Professors address students, or vice versa, is more akin to duties such as taking roll,  and is distinguishable from discussion of substantive issues in the classroom. In my estimation, the Courts could avoid much of this confusion simply by adopting the AAUP Statement on Academic Freedom as underlying legal principle, rather than attempting to distinguish between matters of public concern and personal concern. In my previous post on this topic I addressed both my objections to Garcetti, as well as to the narrowness of the balancing test cases prior to Garcetti, and will consequently not repeat those arguments here. Nor will I address other related issues such as extra-mural speech by Faculty, or speech with respect to committee work. Instead, I will focus on the specific issues raised by this case. I have inserted a disclaimer and explanation regarding my involvement in this case at the end of this post.

This case rests not just on the interpretation of the law, but also on what exactly transpired in this case. At present, the Court has accepted that the facts as stated are true, but only for the sake of argument. The facts surrounding the case will no doubt be challenged in any actual hearing of the case. Some of the specific facts of this case in my view, significantly strengthen Professor Meriwether’s hand. Simply put, in multiple aspects of this case the University overreached.  In a few instances the precise details of this case as presented in the Court’s decision differ  from my own recollection of the sequence of events. For the most part, they are in my estimation insignificant and do not impact the substantive issues in the case. In one however, I think that a potential error may matter for the religious freedom aspect of this case. The suit alleges that the Chair of the Department of English and Humanities made multiple negative remarks to Professor Meriwether regarding religion. In the first instance, Chairs at Shawnee State University are not managerial employees but are specifically (with two exceptions) incorporated into the bargaining unit. Hence the Chair of the Department had no power to enforce or alter University Policy. I did not witness the alleged conversation between the Chair and Professor Meriwether but I am dubious that the Chair would make anti-religious comments in that fashion and context, though it is possible that some remarks are taken out of context. But as a member of the bargaining unit, the Chair also had the right to express her views on religion. As I’ve stated before, I do not believe there was anti-religious bias in this instance. If anything, in my experience, the University over accommodates public expressions of religiosity, and in several instances, I have respected this, rather than make a public spectacle of myself.

With the above caveats in mind, l will proceed to discuss the merits of the case. The argument that Professors have zero First Amendment rights to articulate an opinion in the classroom does in fact leave the classroom open to the imposition of a stifling orthodoxy by whoever happens to be in power. Taken at face value, it would mean that the University would in principle be merely hiring Professors to read an approved script, from which Professors would not be allowed to depart. The University, for its part, has said that it does not mean to stifle classroom discussion, though it has asserted that it can regulate the expression of opinion by Professors. This position would make any controversial classroom speech by a Professor subject to discipline and would lead many to automatically self censor. Not only is this bad law, it is also bad educational practice.

Yet the right to challenge orthodoxy does not mean that the University has no right compel some kinds of speech in the classroom. In the first instance, the University has the right to compel me to lecture on Economics and International Relations, and not on astrology. It has the right compel biology Professors to accurately present the theory of evolution for what it is: a strongly warranted and near universally accepted scientific theory or to require chemistry Professors to accurately explain hydrogen bonding. Nor does a Professor actually have the right to present the view that DNA is composed of “special proteins” as a cutting edge scientific theory backed by good evidence. There is an important, and subtle balance that is struck in the classroom between presenting legitimate arguments as to whether Marx, or Keynes, or Smith is correct, whether the Peace of Westphalia really inaugurated the nation state system, whether the U.S. is in fact an Imperialist power, and telling students that the Earth is 10,000 years old or flat, that short run supply curves slope down or that the derivative of X squared is zero. Our speech in the classroom must at least be competent and reasonably related to the curriculum established by the University. For the most part, Professors typically believe established principles of their disciplines to be true, but even in cases where they do not, for whatever reason, there is still an obligation to ensure that students learn the basic principles of the discipline. Some speech, in the classroom, is, and must be, legitimately compelled, regardless of belief, including some speech that might in some way fall under the rubric of “public concern”. Yet it would be more clear if the Court adhered to a standard of protecting speech in the classroom that is broadly relevant to the established content of the Course.

In other instances however, the assertion that Professors should not be required to profess beliefs they do not hold is valid. I am not required to participate in public prayers, stand for the national anthem, or recite the pledge, though I do in fact engage in those activities, primarily out of courtesy. I doubt however, that any observer, took my actions as a signal that I was professing any particular opinion on religion or politics. But the Professor in this case was not asked to sign a loyalty oath or profess anything, beyond simply addressing the student in accordance with her expressed wishes. When a newly divorced student requests that I address her in accordance with her maiden name and I do so, I am not making any statement whatsoever regarding my views on marriage and divorce. I request that my students call me Professor and I request that everyone in class demonstrate courtesy towards everyone else in class. I encourage students to express disagreement, and even to do with vigor and passion when they disagree with my views. Nevertheless, I reserve the right to control the way in which views are expressed. I am dubious, consequentially, that there was any actual required statement of belief in this matter. The judge in this case, writing for a unanimous majority, noted that how roll is taken in class, for example, is a matter that should be left to the University’s discretion. I agree. And in my view, how students are addressed in class discussion is just an extension of that issue. In this particular instance, the student had actually changed her name and registered with a name that is typically viewed as a female name. She wished to be addressed as a female. No one has ever argued, to my knowledge, that students at the University can on any given day demand compliance with a daily pronoun change and switch between four or five different pronouns. That the University publishes a very broad definition of gender identity does not mean that the University actually seeks to enforce that particular definition.

And this gets us back to the thorny issue of addressing these issues as instances of gender based discrimination under Title IX of the Higher Education Act, which is how the University chose to address it. There is a dispute as to whether the standard for judging sexual or gender based harassment in an education setting should follow that of Davis v. Monroe, or the multiple precedents that apply to the employment setting. The U.S. Department of education has implied that there is a difference between judging Title IX of the Higher Education Act violations, and judging violations of Title VII of the Civil Rights Act. Based on my own knowledge however, though I lack a legal degree, I am not so sure the distinction is really a difference when we are judging the speech of Professors towards students, especially in the classroom setting. Speech in the grocery store, for example, is a different matter. Does one have a right, in the appropriate context, as Professor, to express disagreement or even agnosticism with any particular viewpoint, including the complex relationship between biological sex and gender expression? I think they do. Yet it still remains unclear to me why anyone views it as prerogative to arrogate to themselves the need to make a judgement as to whether or not one’s desired form of address corresponds sufficiently to their overall gendered presentation as a person. I’m actually about as close to a First Amendment absolutist as they come, yet I have trouble seeing the Constitutional principle that specifically makes it a right to take it upon myself to determine whether a student should be called Ms. or Mr. in the classroom in a matter that is contrary to a student’s expressed wish, especially in those cases where students have gone through the University process to so identify. The University clearly has a legitimate interest in maintaining a civil environment in the classroom so it seems to me that the University could, in principle, and independently of issues related to gender based harassment, enact a policy that requires students and faculty both to address each other with a modicum of respect in the classroom. Whether my views will pass Constitutional muster in the Sixth District Court remain to be seen, but it is unfortunate the the University chose to argue that there is no such thing as free speech in a college classroom, rather than argue that the speech in question was simply out of bounds.

Disclaimer: For the record, as stated in my previous post, I represented the plaintiff in the University’s internal grievance process. I thought then, and still do, that there is an intermediate position between Professor Meriwether’s views and those of the University and that as noted in the Court’s summary of this case, the University committed a number of procedural errors in this matter. In addition, Unions have specific legal obligations towards all bargaining unit members. That said, the views expressed in this post are my own personal views and do not represent the views of any organization.

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