Court Rules Free Speech Must Yield to ‘Woke’ Speech

Transgender symbol. Trans gender sign. Abstract night sky background

Shawnee State University in southern Ohio (cross the bridge and you’re in Kentucky) is an open-admissions school that opened in 1986. It’s very little known, but the school’s administrators are as politically attuned to progressive sensibilities as any across the nation. A case that has arisen at Shawnee threatens to set a terrible precedent for the suppression of speech that any “woke” student claims to find harassing.

Nicholas Meriwether has been on the Shawnee faculty since 1996, teaching political science. He has risen to the rank of full professor with the equivalent of tenure. In a course on political philosophy he was teaching in 2018, he called upon an obviously male student and after the student (registered in class under the name Alena Breuning, but referred to as “Doe” in the court documents) replied, Meriwether said, “Yes, sir.” That’s all it took to set off a federal case.

Doe approached Meriwether after the class and told him that he was transgender and insisted upon being referred to with female titles and pronouns. “Miss” would be proper, not “Mister.” Meriwether was taken aback and replied that he didn’t think students could dictate to professors how to address them, at which point Doe became belligerent, declaring that Meriwether could either comply or be fired.

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Doe complained to Shawnee administrators who, in turn, called Meriwether in for a meeting. They reminded him of the school’s “Nondiscrimination and Sexual Harassment Policy” instituted in 2016, which commits the university to prevent discrimination and eliminate any “hostile educational environment” it might cause. In the policy, discrimination is defined to include “any negative or adverse treatment based on gender identity which denies or limits the individual’s ability to obtain the benefits from university programs and activities.”

In the view of the administrators, using an unwanted form of address for a transgender student amounted to sexual discrimination. That the student didn’t like it was enough. Therefore, Meriwether suggested that he would continue to address all other students as he always had, but would refer to the complaining student merely as “Doe.” That placated the administrators, and Meriwether conducted the class for about two weeks in that manner. Doe was in class and participated as usual.

Soon, however, the conflict erupted again when Meriwether forgot and said, “Mr. Doe.” Even though he immediately corrected himself, the damage had been done. Doe again complained about Meriwether’s unequal treatment of students in class, saying that (s)he might hire a lawyer and bring a Title IX action against the university if something weren’t done about the professor.

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Meriwether was then called to meet with Dean of the College of Arts and Sciences, Roberta Milliken, who informed him that “Every student needs to be treated the same. The policy seeks to ensure that what is done for one student is done for all to avoid issues of discrimination.” She furthermore informed him that the school viewed his disparate treatment of Doe as having created a “hostile environment.”

Meriwether asked her if he would be in compliance with the school’s policy if he were to 1) refer to all students “by their self-asserted gender identity” but also 2) include on his syllabi a disclaimer stating that he did so under compulsion and explaining his personal and religious beliefs about gender. Milliken told him that that would not be acceptable.

Shawnee began a formal investigation of Meriwether which culminated in June with a decision by the provost that he had violated university policy by continuing to address Doe differently than other students “based on a trait that is protected under our nondiscrimination policy.” A warning letter was then placed on Meriwether’s personnel folder stating that if “such behaviors” recur, he would face the possibility of further corrective action.

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Professor Meriwether felt himself harmed by Shawnee’s action. Since that time, he has felt obliged to refrain from any discussion of issues relating to gender identity for fear of suspension or termination. Also, he says that the letter in his file could prevent him from obtaining any future academic position.  Feeling that the university violated his rights, Meriwether brought a lawsuit against the university late in 2018, aided by Alliance Defending Freedom. He argued that the university violated his rights under the First and Fourteenth Amendments by punishing him for his speech in addressing students and his refusal to refer to Doe as a woman and thereby “lend credence to cultural ideas Dr. Meriwether does not share or wish to advance.”

The relief sought by the suit was a declaration that Shawnee’s discrimination policy as applied to Meriwether is illegal, that the administration desist from compelling him to use whatever forms of address students demand, to remove the letter from his file, nominal damages for the violation of his rights, and attorney’s fees.

How would Shawnee respond?

It might have made the case go away by pulling the letter and allowing Meriwether to keep referring to students as he thinks best, using gender-appropriate titles and pronouns for students who don’t mind that and last names for those who say they’re gender fluid. That was the approach that worked until he mistakenly called Doe “Mister” and set him off on his campaign to have Meriwether punished. It’s worth noting that Doe completed the course and received a high grade from the professor. Just how Meriwether created a hostile learning environment is difficult to discern.

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But Shawnee did not choose to settle quietly. Instead, it lawyered up to protect its regulations and avoid any accommodation with Meriwether, against whom the record shows considerable animus by administrators on account of his religious beliefs. So the university has rung up hefty legal costs in fighting the suit.

The administration may think it is money well spent up to this point.

On September 5, 2019, U.S. Magistrate Judge Karen Litkovitz, to whom the case had been assigned, completely dismissed Meriwether’s complaint. (Her decision is here.) The crux of her ruling was that (citing a 1989 Sixth Circuit case), “Universities may sanction professors whose pedagogical attitudes and teaching methods do not conform to institutional standards.” Thus, First Amendment rights and academic freedom fall before the scythe of “institutional standards” shaped by the perceived need to satisfy the most aggressive “woke” students.

Then, on February 12, U.S. District Judge Susan Dlott upheld Judge Litkovitz’s dismissal of the case. Meriwether’s attorneys immediately appealed the dismissal to the Sixth Circuit Court of Appeals.

The Sixth Circuit should decide that the lower court judges have misapplied the law, giving far too much weight to the university’s dubious “hostile environment” findings and far too little to the free speech issues involved.  If it does so, and sends the case to trial, a jury might very well see the university as the aggressor here, much as the jury did in the Oberlin College case, and decide in favor of Meriwether.

No matter how the case eventually turns out, the events here tell us a lot about the state of American higher education in 2020. Administrators are in thrall to students who are zealots for “social justice” causes and will go to great lengths to put down anyone who displeases them.  They find it easy to do so owing to vague law against “discrimination” and “harassment” that they can interpret as they please.

We have, in essence, a caste system in higher education, with “woke” students on top and tradition-minded faculty (particularly religious ones) on the bottom. They are the people who face a hostile environment.

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George Leef

George Leef is Director of Research for the John W. Pope Center for Higher Education Policy.

13 thoughts on “Court Rules Free Speech Must Yield to ‘Woke’ Speech

  1. Higher education is working with great effort to make themselves both supercillious and obsolete. The public are starting to catch on. May they all burn in h3ll.

    Colleges have not delivered the goods for years. Totally abandoning both critical thinking skills and accurate versions of history and philosophy, they only turn out manchurian candidates who are programmed to self destruct at some unknown time in the future.

  2. The English language already has a perfectly good neuter pronoun and I will be pleased to refer to anyone so inclined as “it.”

  3. All students, faculties, and staffs at any u or college today are oppressed in their speech, teaching methods, relations with students in assigned classes and outside them, and very thought processes due to Title IX’s “hostile environment” phrase which President Obama weaponized with LETTERS, not a change in law, to include “gender” as a protected category in the 1972 re-affirmed Civil Rights Act of 1964. Now, even though the Trump admin. through the Department of Education rescinded that letter and its interpretation of Title IX, courts, administrators, and leftist politicians continue to treat ISSUES as if “gender” were included in the original law that actually reads,” SEC. 202. All persons shall be entitled to be free, at any establishment or place, from discrimination or segregation of any kind on the ground of race, color, religion, or national origin, if such discrimination or segregation is or purports to be required by any law, statute, ordinance, regulation, rule, or order of a State or any agency or political subdivision thereof.” NO GENDER.

  4. Judge Susan Dlott is a well-known leftist jurist from Cincinnati who would find the world flat if the suit claiming so was brought by a liberal. No surprise here on her verdict.

  5. Susan Dlott – appointed by Slick Willie – the original #MeToo man. Color me not surprised. Our judiciary needs a lot of cleaning up.

  6. “Administrators are in thrall to students who are zealots for “social justice” causes and will go to great lengths to put down anyone who displeases them. They find it easy to do so owing to vague law against “discrimination” and “harassment” that they can interpret as they please.”

    The problem here is not a ‘misinterpretation’ of the law. This is the purpose of anti-discrimination laws – to violate the rights (from speech rights to property rights to association rights etc) of some for the benefit of others. These laws are WHY *wokeness* now exists. And the continued existence of these laws is why such destructive behavior will only get WORSE in the future.

    It is time to ABOLISH anti-discrimination laws.

  7. So essentially, the lower courts have decided that University Constitutions over ride the US Constitution.

  8. We also have a system where the ever-growing kudzu of very woke admins and undergrad dorm Resident Advisors carry more weight than faculty rights of Academic Freedom and Tenure. Long gone are the days where my curmudgeonly 10th grade biology teacher could put such sayings on the chalkboard as “A man is best measured after being cut down to size”.

    The woke admins are far more of a problem than the very liberal faculty.

  9. How this case should actually be resolved:

    All university administrators are fired.
    All taxpayer funding to this university is suspended indefinitely.
    This so-called student is expelled.

    That’s just the bare minimum for a just society. Once we get to that point we can talk about compensation for the professor for a hostile environment and the lost time & damages to his reputation by these terrorists.

  10. “ Administrators are in thrall to students who are zealots for “social justice” causes“
    I disagree. The students are Red Guards certainly, but like the 1960s Maoist
    Red guards, they’re pawns and proxies for the Chairman Mao and Gang of Four college leadership who share their views, and who use them to gain more institutional power. This case is the administrators eliminating their rivals, the independent faculty.
    When Shawnee College goes out of business in the post-virus online learning shakeout, remember this.

  11. I like the student who turned around and stated his “preferred pronoun” was “His Royal Highness” or something like that. And one way around this is to call students by their student numbers.

    But what about the hostile environment the professor experienced?

    And on a more practical standpoint, what are “woke” students going to do if the university doesn’t reopen. Hampshire’s in trouble because it opened in 1974 — the ’90s were not good for higher ed. If this place started in 1986, it missed out on those good years too.

    The Wuhan Virus may end a lot of foolishness…

    1. And I’m seeing a lot in the Higher Ed literature about how the Federal Government is going to have to “bail out” Higher Ed because of the Wuhan Virus.

      Yes, Donald Trump and a Republican Congress are really going to want to bail out Higher Ed — I’m thinking they’d be more inclined to grab an Ash stake and a sledgehammer. And that the crazier things get on assorted campi, the more they are going to want to grab that stake & sledge.

      And that it might not be a bad thing if they do…

  12. Is there a single piece of Progressive dogmatic oppression which DOES NOT echo 1984 (and / or Dr. Seuss)????

    “Now I will tell you the answer to my question. It is this. The Party seeks power entirely for its own sake. We are not interested in the good of others; we are interested solely in power, pure power. What pure power means you will understand presently. We are different from the oligarchies of the past in that we know what we are doing. All the others, even those who resembled ourselves, were cowards and hypocrites. The German Nazis and the Russian Communists came very close to us in their methods, but they never had the courage to recognize their own motives. They pretended, perhaps they even believed, that they had seized power unwillingly and for a limited time, and that just around the corner there lay a paradise where human beings would be free and equal. We are not like that. We know that no one ever seizes power with the intention of relinquishing it. Power is not a means; it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship. The object of persecution is persecution. The object of torture is torture. The object of power is power. Now you begin to understand me.”

    Mr. Doe clearly knows this. …. As do the Deans and Chancellors of the New Inquisition who all rush to validate this Orwellian truism: “Power is in tearing human minds to pieces and putting them together again in new shapes of your own choosing.”

    And so they tried to reshape the recalcitrant Prof. Meriwether.

    Instead….
    “…as Yertle, the Turtle Dean, lifted his hand
    And started to order and give the command,
    That plain little turtle below in the stack,
    That plain little turtle whose name was just …. er, Nick!
    Decided he’d taken enough. And he had.
    And that plain little lad got a bit mad.
    And that plain little Prof did a plain little thing.
    He burped and said MR.!
    And his burp shook the throne of the king!”

    Or so we can only hope.

    But even if it does….and even if the little turtle haven which is Shawnee State actually is made to back-up a bit and acknowledge Meriwether’s pronouned legitimacy (given the school’s anticipated scolding from the 6th Circuit Court)….the sad reality remains: Shawnee State’s so-called “institutional standards” are hollow, empty, & brainless. An institute of ‘higher education’, the University fails utterly to recognize Truth, even when it hits them in the face.

    So let us see if we can help. Mr. Breuning is not a woman. He cannot become a woman. He will never be a woman. Neither can he become a zebra or a pebble or 1956 Chevy (despite how very much be really, really wants to be one). His appropriate pronouns always have been and will forever remain: he, his, and him. And Meriwether has always been absolutely correct.

    That it takes a lawsuit, multiple appeals, and the 6th Circuit Court to help convince a University of these salient and unavoidable realities …all that tell us exactly how far we’ve fallen. Let us hope we can still get up.

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