OP-ED: Faculty have a right to say 'no' when confronted with mandatory preferred pronoun policies
The First Amendment protects faculty at public institutions against compelled speech.
Most individuals know that the First Amendment protects a person’s right to speak and express their views freely, generally without fear of governmental interference.
Less known, but no less protected, is the right not to speak, often referred to as a protection from “compelled speech.” An individual’s right not to be forced to say something at odds with their beliefs has long been recognized by the U.S. Supreme Court.
Unfortunately, the right against compelled speech is under renewed challenge today in higher education, where, for example, faculty are being disciplined, and in some cases threatened with dismissal, if they fail to adhere to mandatory preferred pronoun policies.
While the preferred pronoun push in higher education is promoted under the guise of advancing diversity and inclusion, such efforts are no less offensive to the First Amendment since they force an individual to adhere to an ideological point of view they find unacceptable.
Protection against compelled speech was recently affirmed by a federal appeals court in a case involving a tenured faculty member at Shawnee State University (SSU) in Ohio who was disciplined for refusing to comply with the institution’s preferred pronoun policy.
Seeing the writing (of a possible seven-figure verdict) on the wall, SSU settled the case for $400,000.00
In 2018, Professor Nicholas Meriwether found himself in hot water when he refused on personal and religious grounds to address a student with pronouns that did not match the student’s biological sex.
Meriwether offered to use the student’s preferred pronouns if he could include a disclaimer in his syllabus that he was being compelled to do so, while explaining his beliefs about gender identity. He also offered to use no pronouns and only refer to the student by his last name. SSU rejected these options.
For his actions, Meriwether was found in violation of the university’s Title IX policy. He received a written reprimand and a warning that similar conduct could result in further corrective action, implying possible termination.
In permitting Meriwether’s lawsuit to proceed, the court emphasized that academic freedom is a special concern of the First Amendment, which “does not tolerate laws that cast a pall of orthodoxy over the classroom.”
The court further acknowledged that academic freedom includes an instructor’s use of titles and pronouns in the classroom. Here, Meriwether’s choices “touch on gender identity—a hotly contested matter of public concern that ‘often’ comes up during class discussion in his political philosophy courses.”
Contrary to SSU’s claim that its policy was merely ministerial, much like taking attendance, the court held that the use of titles and pronouns carries a message, and in this case the institution’s message is: “People can have a gender identity inconsistent with their sex at birth.”
Forcing Meriwether to convey this message amounts to compelled speech, which is irreconcilable with the First Amendment and violates a “cardinal constitutional command.”
This decision and the resulting settlement should put institutions on clear notice that implementing similar ill-fated and unconstitutional policies will cost they/them/theirs dearly.