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Free Speech

Pronouns in the University Classroom & the First Amendment

A federal appellate court lets a professor's First Amendment claim go forward, in an opinion that powerfully protects faculty academic freedom more broadly.

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The case is today's Sixth Circuit decision in Meriwether v. Hartop, written by Judge Amul Thapar and joined by Judges David McKeague and Joan Larsen. There are a lot of moving parts here, so let me go through them one by one.

[A.] First, the facts: Shawnee State University had a policy requiring that students "refer to students by their 'preferred pronoun[s].'" Prof. Nicholas Meriwether disagreed, and "proposed a compromise: He would keep using pronouns to address most students in class but would refer to Doe [a transgender student in his class] using only Doe's last name." The University at first agreed, but then changed its mind.

The University also refused another proposed compromise that Meriwether offered: "allow him to use students' preferred pronouns but place a disclaimer in his syllabus 'noting that he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity." The Dean "insisted that putting a disclaimer in the syllabus would itself violate the university's gender identity policy."

Meriwether sued, and the Sixth Circuit allowed his case to go forward; but because of the particular facts, the court did not decide whether a professor could insist on actually using a pronoun that didn't match the student's preferred pronoun. Rather, the court only considered whether a professor could decline to use the student's preferred pronoun.

[B.] Now, the background legal rule: Generally speaking the government may discipline (including firing) an employee based on the employee's speech if

  1. the speech is not said by the employee as part of the employee's job duties, Garcetti v. Ceballos (2006), or
  2. the speech is on a matter of purely private concern, Connick v. Myers (1983), or
  3. the damage caused by the speech to the efficiency of the government agency's operation outweighs the value of the speech to the employee and the public, Pickering v. Board of Ed. (1968).

This is quite different from the rules for criminal or civil liability for speech. Speech doesn't usually lose First Amendment protection, for instance, just because it's on a matter of purely private concern. Likewise, courts generally don't do case-by-case balancing of the value of speech against the harm that the speech causes. But when the government is acting as employer, it has a great deal of extra authority, especially over how its employees treat the government's clients and more generally over how they do their jobs.

[C.] But there have also been lots of cases that say that academic employment is different from other forms of employment, and this is what happened here.

[1.] The court followed earlier decisions by the Fourth and Ninth Circuit (and an implicit decision of the Fifth Circuit) in holding that the Garcetti no-protection-for-speech-within-job-duties doctrine doesn't apply to public university teaching:

[Garcetti] expressly declined to address whether its analysis would apply "to a case involving speech related to scholarship or teaching." See also Adams v. Trs. of the Univ. of N.C.-Wilmington (4th Cir. 2011) ("The plain language of Garcetti thus explicitly left open the question of whether its principles apply in the academic genre where issues of 'scholarship or teaching' are in play."). [And the Court's earlier decisions] have "long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition." …

If professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity. A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet émigré to address his students as "comrades." That cannot be. "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe" such orthodoxy….

Remember, too, that the university's position on titles and pronouns goes both ways. By defendants' logic, a university could likewise prohibit professors from addressing university students by their preferred gender pronouns—no matter the professors' own views. And it could even impose such a restriction while denying professors the ability to explain to students why they were doing so. But that's simply not the case. Without sufficient justification, the state cannot wield its authority to categorically silence dissenting viewpoints.

[T]he academic-freedom exception to Garcetti covers all classroom speech related to matters of public concern, whether that speech is germane to the contents of the lecture or not. The need for the free exchange of ideas in the college classroom is unlike that in other public workplace settings. And a professor's in-class speech to his students is anything but speech by an ordinary government employee.

Indeed, in the college classroom there are three critical interests at stake (all supporting robust speech protection): (1) the students' interest in receiving informed opinion, (2) the professor's right to disseminate his own opinion, and (3) the public's interest in exposing our future leaders to different viewpoints. Because the First Amendment "must always be applied 'in light of the special characteristics of the … environment' in the particular case," public universities do not have a license to act as classroom thought police. They cannot force professors to avoid controversial viewpoints altogether in deference to a state-mandated orthodoxy. Otherwise, our public universities could transform the next generation of leaders into "closed-circuit recipients of only that which the State chooses to communicate." Thus, "what constitutes a matter of public concern and what raises academic freedom concerns is of essentially the same character."

Of course, some classroom speech falls outside the exception: A university might, for example, require teachers to call roll at the start of class, and that type of non-ideological ministerial task would not be protected by the First Amendment. Shawnee State says that the rule at issue is similarly ministerial.

But as we discuss below, titles and pronouns carry a message. The university recognizes that and wants its professors to use pronouns to communicate a message: People can have a gender identity inconsistent with their sex at birth. But Meriwether does not agree with that message, and he does not want to communicate it to his students. That's not a matter of classroom management; that's a matter of academic speech….

[2.] The court then held that the speech here was on a matter of "public concern":

When speech relates "to any matter of political, social, or other concern to the community," it addresses a matter of public concern. Thus, a teacher's in-class speech about "race, gender, and power conflicts" addresses matters of public concern. A basketball coach using racial epithets to motivate his players does not. "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."

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. 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. 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." …

Never before have titles and pronouns been scrutinized as closely as they are today for their power to validate—or invalidate—someone's perceived sex or gender identity. Meriwether took a side in that debate. Through his continued refusal to address Doe as a woman, he advanced a viewpoint on gender identity. Meriwether's speech manifested his belief that "sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual's feelings or desires." The "focus," "point," "intent," and "communicative purpose" of the speech in question was a matter of public concern.

And even the university appears to think this pronoun debate is a hot issue. Otherwise, why would it forbid Meriwether from explaining his "personal and religious beliefs about gender identity" in his syllabus? No one contests that what Meriwether proposed to put in his syllabus involved a matter of public concern….

[3.] Finally, the court held that the Pickering balance tipped in favor of protection for Meriwether's speech, again because of the academic freedom context:

Start with Meriwether's interests. We begin with "the robust tradition of academic freedom in our nation's post-secondary schools." That tradition alone offers a strong reason to protect Professor Meriwether's speech. After all, academic freedom is "a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom." And the First Amendment interests are especially strong here because Meriwether's speech also relates to his core religious and philosophical beliefs. Finally, this case implicates an additional element: potentially compelled speech on a matter of public concern. And "[w]hen speech is compelled … additional damage is done."

Those interests are powerful. Here, the university refused even to permit Meriwether to comply with its pronoun mandate while expressing his personal convictions in a syllabus disclaimer. That ban is anathema to the principles underlying the First Amendment, as the "proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'" Indeed, the premise that gender identity is an idea "embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view."

And this is particularly true in the context of the college classroom, where students' interest in hearing even contrarian views is also at stake. "Teachers and students must always remain free to inquire, to study and to evaluate, [and] to gain new maturity and understanding."

On the other side of the ledger, Shawnee State argues that it has a compelling interest in stopping discrimination against transgender students. It relies on EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (6th Cir. 2018) in support of this proposition. But Harris does not resolve this case. There, a panel of our court held that an employer violates Title VII when it takes an adverse employment action based on an employee's transgender status.

The panel did not hold—and indeed, consistent with the First Amendment, could not have held—that the government always has a compelling interest in regulating employees' speech on matters of public concern. Doing so would reduce Pickering to a shell. And it would allow universities to discipline professors, students, and staff any time their speech might cause offense. That is not the law. See Street v. New York (1969) ("[T]he public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers."). Purportedly neutral non-discrimination policies cannot be used to transform institutions of higher learning into "enclaves of totalitarianism."

Turning to the facts, the university's interest in punishing Meriwether's speech is comparatively weak. When the university demanded that Meriwether refer to Doe using female pronouns, Meriwether proposed a compromise: He would call on Doe using Doe's last name alone. That seemed like a win-win. Meriwether would not have to violate his religious beliefs, and Doe would not be referred to using pronouns Doe finds offensive. Thus, on the allegations in this complaint, it is hard to see how this would have "create[d] a hostile learning environment that ultimately thwarts the academic process."

It is telling that Dean Milliken at first approved this proposal. And when Meriwether employed this accommodation throughout the semester, Doe was an active participant in class and ultimately received a high grade.

As we stated in Hardy, "a school's interest in limiting a teacher's speech is not great when those public statements 'are neither shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.'" The mere "fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." At this stage of the litigation, there is no suggestion that Meriwether's speech inhibited his duties in the classroom, hampered the operation of the school, or denied Doe any educational benefits. Without such a showing, the school's actions "mandate[] orthodoxy, not anti-discrimination," and ignore the fact that "[t]olerance is a two-way street." Thus, the Pickering balance strongly favors Meriwether.

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. 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."

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. Bauer even admitted that Meriwether's conduct "was not so severe and pervasive that it created a hostile educational environment." Thus, 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.

[D.] The panel also allowed Meriwether's Free Exercise Clause to go forward, based on the allegations that "officials at Shawnee State exhibited hostility to his religious beliefs" and that "irregularities in the university's adjudication and investigation processes permit a plausible inference of non-neutrality." That part of the opinion also discussed an interesting factual twist:

[T]he university argues that Meriwether simply could have complied with the alternative it offered him: Don't use any pronouns or sex-based terms at all. This offer, the university says, would not violate Meriwether's religious beliefs. But such an offer has two problems. First, it would prohibit Meriwether from speaking in accordance with his belief that sex and gender are conclusively linked. And second, such a system would be impossible to comply with, especially in a class heavy on discussion and debate. No "Mr." or "Ms." No "yes sir" or "no ma'am." No "he said" or "she said." And when Meriwether slipped up, which he inevitably would (especially after using these titles for twenty-five years), he could face discipline. Our rights do not hinge on such a precarious balance.

The effect of this Hobson's Choice is that Meriwether must adhere to the university's orthodoxy (or face punishment). This is coercion, at the very least of the indirect sort. And we know the Free Exercise Clause protects against both direct and indirect coercion.

[E.] So there are several important conclusions and implications here, it seems to me:

  1. The case provides further support for the view that the First Amendment potentially protects public university professors' teaching decisions (at least in some situations).
  2. Under the court's reasoning, the First Amendment would even more clearly protect against liability imposed by the government as sovereign (e.g., through the civil liability system or through administrative fines)—for instance, in the New York City rules I discussed here—rather than just as employer.
  3. Much of the language in the opinion will also be used to support other kinds of academic freedom claims, for instance based on faculty research, faculty outside writing (from Tweets to blog posts to op-eds), and university student speech.
  4. But whether a university may forbid faculty members from referring to students using the pronoun that the student rejects remains an open question. This case only deals with faculty members declining to use the pronoun the student prefers, and using the student's name instead.

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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76 responses to “Pronouns in the University Classroom & the First Amendment

  1. It seems curious that EV does not question Doe’s pseudonymity here. Why would Doe insist on the use of a favored pronoun in public if he/she were bashful either about doing so or about being transgender?

    1. “It seems curious that EV does not question Doe’s pseudonymity here.”

      Why? The post is on a completely different topic.

    2. I don’t believe Doe is involved here. The professor sued the university for the policy. So this isn’t an instance where Doe is insisting on anonymity/sealing. That is likely done due to laws regarding student privacy

      1. According to the caption, Doe did intervene (apparently supporting the school).

    3. Just guessing here, but perhaps the reason is that some people, especially The Religious White, go out of their way to demonstrate to trans people exactly how unfit for society they are, and along the way, trans people get murdered.
      And the murders usually go unresolved.
      After dehumanizing a group of people because of who they are, there is no low people won’t sink to brand them Untouchable.

  2. PC is case to plunder the assets of productive people. PC is denial of reality since all -isms are folk statistics, mostly true, most of the time. These change with reality. African immigrants outperformed whites in the 2010 Census. Now, there is a new stereotype, very dark skinned people are top performers. One of my employers had trouble with turnover. I suggested, go African, then get their families and friends. Problem over. That was racism, but correct.

    The forced use of a pronoun that contradicts the chromosomal genotype in every cell of the body of the student is coerced denierism. It is out of the fear of ruinous litigation by civil rights scumbag lawyers. The lives of these traitors and deniers should be destroyed, as they are trying to destroy the family and our American Way of Life. Mount an all out campaign of lawfare on each plaintiff lawyer, their homes, their families, their assets. Get them cancelled from all their groups. If that fails, Antifa them. To deter.

    1. You’re a raving lunatic.

      1. Answer the question, what was the gender on your birth certificate?

    2. Would the same logic defend a professor’s educational choice to refer to his students by insulting racial epithets, if that professor had a personal belief that certain races were inferior as humans? Would a university policy that prohibited use of racial slurs violate that professor’s 1A rights?

      1. I’m not sure how my question ended up here. It wasn’t intended as a reply to anyone, just a general question.

      2. Would the same logic defend a professor’s educational choice to refer to his students by insulting racial epithets, if that professor had a personal belief that certain races were inferior as humans? Would a university policy that prohibited use of racial slurs violate that professor’s 1A rights?

        Given that the issue of compelling speech is very different from that of prohibiting it I’m not sure how you would go about applying “the same logic” used for objecting to one to objecting to the other.

      3. No. Per the article, the decision explicitly leaves open the question of whether or not using a pronoun the student objected to would constitute punishable discrimination.

        1. Yes, I get that, but the reasoning of the decision would seem to argue for the professor having 1A protection to use an objectionable pronoun, or a racial epithet. It’s as if the 6th circuit realized the ramifications, and tried at the end to reel it back a bit.

          1. Well, here’s an example. Let’s say the good professor knows two same sex students get married, or heck, let’s say he knows two divorced students get married, and he has very strong, sincere beliefs that marriage cannot exist between same sex or divorced couples, so he refuses to refer to them by their newly assumed last names, instead insisting on referring to them by their old last names. The college couldn’t compel him to use their last names (to the extent he uses last names with other students) because it would abridge his freedom of speech? Come on.

            1. Is the compusion because the professor should use the legal names as part of bookkeeping for students, or because he needs-a-learnin’ moment?

              1. This is dangerous talk in America. The continent-smashing asteroid cannot come fast enough.

          2. At one end, you could endorse, (As the university appears to wish to.) a standard where you must refer to a person however they demand, basically without exception. (Never mind that there are actually a lot of “some animals are more equal than others” exceptions in practice.)

            At the other end, you could allow people to refer to others however they wish, basically without exception, including racial epithets.

            If you want to be able to exclude epithets, without arriving at situation 1, (And almost nobody wants situation 1, though some will claim to. Only, as I said, with some animals being more equal than others.) you need a sort of “reasonable man” standard for what is objectionable. Since in practice people are capable of being offended by literally ANYTHING.

            We’re essentially arguing over what constitutes a ‘reasonable man’, and very large fraction of the population don’t think trans people are remotely reasonable.

  3. The IRS Non-Profit Office should be mandamused to pull the tax exemption of Shawnee State. I am curious if the academic leadership of this school is Ivy indoctrinated. If it is, they must be cancelled.

    The lawyers in the defense bar, in the freedom bar will not attack judges and lawyers legally. Perhaps, a service to destroy the lives of the internal enemies of our country should be started. Send in the name, Traitor Cancel does the rest.

  4. What if there was a student who was named William but made it known they preferred to go by something else, Billy. A person who then insisted on calling that person William each and ever time is kind of being an a-hole aren’t they? Would that be protected by the First Amendment?

    1. “A person who then insisted on calling that person William each and ever time is kind of being an a-hole aren’t they?”

      Kinda depends on the circumstances, doesn’t it? If they’re just doing it to be an asshole, then they’re being an asshole. If, say, they have an idiosyncratic habit of calling people by their full names in order to be formalistic, like the teacher on Little Rascals or whatever, then they’re just idiosyncratic.

      Here, the professor wishes to adhere to a system of pronoun usage that is more or less standard outside of certain scholastic contexts. That’s barely idiosyncratic.

    2. Does your copy of Amendment read…

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances…unless those exercising these rights are being assholes.

      …..?

      1. Amendment I“, that is.

      2. Oh my God, you’re right! I looked up the text of the Amendment for the first time and it doesn’t have the part about assholes at all! Even more interesting I saw it actually doesn’t mention true threats, obscenity, slander or libel, none of them! So all the laws against them are totes and obviously illegitimate under your argument as well. You’ve revolutionized First Amendment jurisprudence with this brilliant ‘does your text have ___ in it? Then Checkmate!’ You can’t hide this light from legal academe and the general public under a bushel any longer, please, I beg of you, publish these ideas in the legal journal of your choice!

        1. You look favorably on government expanding its exemptions to the First Amendment at whim of charismatic demagogues leading the people to outrage.

          So noted.

    3. Assuming the person had a genuine moral or religious objection to the name Billy, the person might offer to compromise by offering to refer to Billy as Mr. Jones. Does Billy have an overriding right to be called Billy? No.

    4. A person who then insisted on calling that person William each and ever time is kind of being an a-hole aren’t they?

      You mean, in casual conversation? I guess, though that seems an overbid. In a formal setting? No, not at ll.

  5. “in the college classroom there are three critical interests at stake (all supporting robust speech protection): (1) the students’ interest in receiving informed opinion, (2) the professor’s right to disseminate his own opinion, and (3) the public’s interest in exposing our future leaders to different viewpoints”

    This is truncated to almost an autistic point. A big part of any education at this level is learning to work with others as part of a team, community and such. You learn lots of social niceties, professional mannerisms, the norms of respectful dialogue and information sharing. College is not the planet Vulcan and it’s not preparing people for that world either.

    1. “A big part of any education at this level is learning to work with others as part of a team, community and such.”

      I think that’s more Kindergarten. People taking Physics in college are there to learn Physics. I know some professors fancy that they have the qualifications, and ability, to teach people to work as a team, but they don’t.

      But in any event, that cuts in favor of the professor, since part of working with a team includes working with people with different views than you.

      1. You really think you’re finished learning about social niceties, working with teams and community in Kindergarten? I urge you to pull your own children from all experiences other than with an Alexa teaching them Physics (and other Actually Important Stuff) immediately after Kindergarten, don’t waste everyone’s time doing otherwise!

        “that cuts in favor of the professor, since part of working with a team includes working with people with different views than you.”

        Actually, you could argue it more involves respecting team-mates and showing people insist on being assholes the door. That’s what happens in most group settings in adult life.

        ” I know some professors fancy that they have the qualifications, and ability, to teach people to work as a team, but they don’t.”

        If you knew what and who could teach and not teach teamwork to a certainty you would’nt be here posting you’d be out there making millions. Suffice it to say it’s a contested area of knowledge and that team work in classes in a college helps is at least an reasonable assumption to make.

        1. “Actually, you could argue it more involves respecting team-mates and showing people insist on being assholes the door.”

          Sure, but respecting team-mates involves not calling people who disagree with you assholes. You learn that in Kindergarten.

          1. Not all people who disagree with you are assholes, but people who insist in referring to you in a way you don’t want to be, yeah, that’s an asshole thing to do.

            1. Many years ago there was a well traveled story about a mother speaking to her daughter about what she wanted to be when she grew up. The girl said when she grew up she wanted to be a model. The mother got upset and said the little girl should expand her horizons; she could be a lawyer, a doctor, the president; she could be anything she wanted. The little girl replied that she wanted to be a pony.

              Guess we will have to start calling the little girl a pony.

      2. 12″,
        A very large part of physics research is working as a team or at least as civil colleagues.
        You have a very narrow view of what a university eductation is

        1. Pretty much everything involves working as a team. That doesn’t mean that working as a team requires teammates to mouth your preferred viewpoint. Just the opposite.

          1. This isn’t ‘your preferred viewpoint’ it’s ‘how you like to be referred to.’ I mean, that’s some basic level of respect stuff in a group.

            “Hi all, I’m excited to start working with you on the project. Elizabeth, what do you think about”
            “Uh, I go by Beth, please.”
            “Nope, you’re Elizabeth. Says so on your paperwork, your birth certificate, so you’re Elizabeth.”
            “Uh, no, I’ve gone by Beth for years, everyone else here calls me Beth.”
            “Nope, can’t have the Rectification of Names violated. You’re Elizabeth and that’s what I’m going to call you throughout this project experience. I mean, you wouldn’t want me to mouth your viewpoints, would you?”

            1. If somebody has a belief that it’s important to refer to people the way the name is on their paperwork, that’s a viewpoint. In my experience, it’s a viewpoint that’s likely to be tolerated as idiosyncratic, and the person making a stink about it would not come off well.

              The viewpoint that men should be referred to as he and women should be referred to as she is a much more mainstream viewpoint than the example you give.

              1. You’re kidding me. The person who insists on calling the other person what she doesn’t want to be called won’t be seen as the one making the stink, but the she in question being upset about his insistence to not refer to her by the name she goes by is?

                Dude, who do you hang out with/work with?

                I mean, in all honesty you’re a bright guy but this is kind of embarrassing for you. Test this out starting next week at work. Where I grew up at it was common to call people the nickname ‘Bubba’ or ‘Chief’ regardless of what their names were. Just start calling one of your co-workers ‘Bubba’ all the time from now on. When they or anyone else questions you explain that you’re now enraptured with 70’s Mid-Atlantic culture and terms of endearment, that their way of life is important to you.

                See who is considered the problem person for the work group.

                1. I had a colleague whose legal name was David. I didn’t work directly with him, just came across his full name on a document here or there. When I met him I said ‘oh, so you’re David!’ He straightened his face and said ‘I go by Dave, my father is David and I’ve never gone by it.’

                  I mean, I guess I could have said ‘no, I’m afraid I’m a stickler for the rectification of names, I am going to call *you* by the name *I* prefer for a bizarrely idiosyncratic reason.’ But I would expect him to be angry with me and my organization to quickly tell me to knock it off. Because it’s *his* name that’s at issue.

                  If you can’t grasp the social niceties of this, think of the other factors. What if everyone else in my previous example calls the person Beth as she desires them to, but I stick with Elizabeth. They often might be confused at to who I was talking about. In a team that has to work fast and intensely that slight bit of confusion could be a problem.

                  Idiosyncracies, by their very nature and definition, often impair effective group work.

                2. “Dude, who do you hang out with/work with?”

                  I hang out with people who aren’t controlling assholes. People who are talking largely get to say what they want. People are focused on getting the stuff done that they’re supposed to get done.

                  If somebody comes to me and whines that the dude that calls everybody by their full name called her Elizabeth instead of Beth, or the dude that calls everybody Bubba called him Bubba, I’m going to be pissed at that person for wasting my time.

                  “Idiosyncracies, by their very nature and definition, often impair effective group work”

                  Then you must hate people that insist on a different pronoun than their sex.

                  1. You really need to test this confidence. I’ll be sure to ask you regularly here over the next few weeks to let me know how it’s going with you calling someone who is not named Bubba, Bubba at your work. Don’t wus out on this, you’ve got nothing to lose because you don’t work with any controlling assholes who would think you’re a strange jerk for not referring to a co-worker how they wanted to be referred to.

                    See, I’m betting you would never try this. Because some part of you knows how silly your position here is for the adult world of today.

                    1. “You really need to test this confidence. I’ll be sure to ask you regularly here over the next few weeks to let me know how it’s going with you calling someone who is not named Bubba, Bubba at your work.”

                      If you want. Do you really work with people who would get butthurt if you called them Bubba?

                    2. The difference here is that “Beth” or “Bubba” is just an arbitrary identifier, it doesn’t actually mean anything, so when you’re using it to refer to somebody, you’re not expressing a position on some factual matter, beyond which person they are.

                      “Her”, “him”, “exalted high lord of the universe” aren’t just identifiers, they carry meanings, which people could sensibly refuse to endorse by using them.

                      And, in fact, the reason some people get pissy about pronouns is exactly that they DO want to force everyone around them to endorse those factual claims.

                      Now, I grant, it would be great if English had a completely neutral identifier that didn’t carry the implication you were identifying a thing rather than a person. A pity, that, maybe fixing that is the real answer here.

                    3. In any event, the idea that people should get to choose how others address them is quite culturally dependent, and class dependent.

                      When I was a kid working in certain service jobs, you’d get hired, they’d order you a name tag based on your paperwork, and that’s what people called you, whether you liked it or not.

                      In many cultures, insisting on being called by a nickname instead of a more formal name (or a first name vs. title/last name) would indicate an unacceptable level of familiarity.

                      As for pronouns, in languages with a T/V distinction, you don’t even get to choose your 2nd person pronouns. If someone would prefer to address you more formally, that’s their perogative.

            2. But if what you want to be called is something that doesn’t reflect reality, people don’t have to go along with it.

              “Hi, I’m Doctor Davy.”
              “But you don’t have medical training or a doctorate!”
              “No, but I still want you to call me Doctor.”

    2. “You learn lots of social niceties, professional mannerisms, the norms of respectful dialogue and information sharing…”

      Counterpoint.

      1. Never much impressed by argument by anecdote.

        1. It’s a fine anecdote. You got a better one?

  6. What about the students preferred adjectives?

  7. I am not persuaded that being required to use a student’s preferred pronoun impacts the free exchange of ideas in a math class (being representative of the general rule with specific examples perhaps leading to another conclusion). It’s nothing more than a nicety of how people refer to each other and thus ought to be within the Garcetti doctrine.

    1. So you agree that a college could require instructors to address everyone by the pronouns appropriate for their biological sex, irrespective of their gender identification?

      1. Doing so would not violate the First Amendment. Whether it violates Title IX is a separate issue.

    2. Bingo, it’s just the exercise and instruction of basic respect and social nicety.

      I mean, can I call Professor Volokh Genie all class if I were his student, especially if politely said ‘I don’t go by that’ and any admonishment would be a violation of my speech expressing my deeply held beliefs in the importance of informal interaction and address?

      1. “Doing whatever we demand is just basic politeness!” has long been a theme on the left. It’s been quite a while since anybody not of the left bought that line.

  8. What does Judge Sutton think of this?

  9. Meriwether would have made his life easier if he resorted to the practice of 100 years ago and not used pronouns at all. All students could be referred to by last name only.
    It would be hard to see how the university could object to a uniform practice across ALL students

    1. I actually think this would have been a sensible compromise. The problem with the original compromise is that the trans person is being singled out, referred to differently than anyone else. That has to be uncomfortable.

      Really, I think people should use the names and pronouns that other people ask them to, but if this guy couldn’t manage that decency then last names for everyone would be passable imo.

      1. And the problem with the trans person’s preferred pronoun is that they were demanding, unlike everybody else, to be referred to inaccurately.

      2. The problem with the original compromise is that the trans person is being singled out, referred to differently than anyone else.

        I guess that depends on the level of generality of how you describe it.

        If you describe it as “Referring to people in the manner in which they prefer to be addressed,” then the trans person is being treated differently.

        If you describe it as “Referring to people by the descriptors applicable to people of their biological sex,” then the trans person is being treated identically.

    2. Literally not using pronouns at all is actually fairly difficult and results in some very awkward language, even if you’re (there I (oh no!) go!) making a conscious effort.

  10. Forcing adults into sick fantasies involving gender bending and made up words is deplorable.

  11. Somebody’s threatened.

    Forcing someone to be referred to in a way that don’t want to be referred to is what’s rather sick. Most people try to give the person they are talking to at least the basic decency of referring to their own selves with their preference.

    1. Basic decency is respecting the right of someone to use commonly understood language that accurately describes objects as they are understood by reality. Requiring people to pretend something that is not normal is normal is the same of committing an act of violence unto them.

    2. “Most people try to give the person they are talking to”

      But when you’re talking *to* them, the pronouns used, like “you”, tend to be ungendered. So you want to control how people talk about you to *other* people.

  12. My rule of thumb is you can call me anything you want as long as you don’t call me late for dinner.

    1. Those who use incorrect pronouns do not get fruit cup.

  13. If I read the court’s opinion correctly, Shawnee could have avoided the free speech and free exercise problems by requiring its faculty to refer to all students with the sex neutral Comrade rather than Mr. or Ms. Comrade has the further virtue of functioning as a sex neutral third party referent. How’s that for a solution that will offend everyone but comply with the constitution?

  14. Libs: We are going to force you to recognize pronouns and language which you do not agree. Also make works of arts for things that violate your religion or face being cancelled.

    Libs: What do you mean you are going to stop a woman from getting an abortion?!?!?!? You can’t use the government to police people like that!!!!

    1. One is clearly in the Constitution, shadows of shadows, and the other uses meaningless words like “Congress shall make no law”.

      I’m fine with both. I’m just punching hard on those trying to find legal workarounds for the First Amendment.

      The issue has nothing to do with the hurt feelings of students, and everything to do with not giving government the primary dictator’s tool of censorship.

      1. The moment you start giving shrift to why government should punish this or that speech, “and it’s really really a good reason!”, you’ve already lost, because no reason is more important than not giving government the 2 wood in the dictators’ bag of golf clubs.

  15. If your religion compels you to be an ostentatious jerk, perhaps you chose the wrong flavor of superstition.

    Or perhaps this is just another example of bigotry (or jerkery) cloaked in a pretext of superstition.

    1. I deny government power to censor, even for really good reasons. Which, oddly, are the only reasons any royal majesty has ever listed.

      1. Should students be entitled to call this professor “clinger,” or “‘superstitious clinger,” without consequences involving government censorship? (The professor is a stale-thinking clinger and claims to be superstitious; students would merely be stating the truth.)

        Should the professor or school be permitted to disadvantage students who address the teacher as “Professor Superstitious Clinger?”

        1. The student would be disciplined not because of the words used, but because of the disrespect shown to the professor in class. However it would be fitting to refer to one’s professor as “Wacko Leftist Nutjob” because that’s what most of them are, and it would be considered a compliment.

          1. The professor is entitled to disrespect a student, but no one may disrespect the professor? Is this another example of special privilege for snowflakey, superstitious conservatives?

  16. This case begs several questions not addressed here.

    Any preferred pronouns at all? What if a student insists on using the pronouns “his majesty”, “royal highness” or even “professor”? Would the college force the instructor to honor all of those?

    What if the student choose a pronoun that was patently offensive to others, like the n-word or whatever? What should the instructor do then?

    1. It’s up to the school to set policy. I doubt they would require any of your examples, but most likely they legally could (assuming this court got the analysis wrong, which I think they did).