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Rebekah Durham, Associate Member, University of Cincinnati Law Review
In 1969, the Supreme Court declared that “[n]either students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Over fifty years later, in 2018, a philosophy professor at Shawnee State University was formally disciplined and threatened with termination for refusing to address a transgender student in class by the student’s preferred pronoun. The professor brought a lawsuit against the school in the District Court of the Southern District of Ohio, alleging that the school had violated his First Amendment rights to freedom of speech and freedom of religion. The case was dismissed by the District Court for failure to state a claim for relief, but the professor’s appeal is currently pending before the Sixth Circuit Court of Appeals.
Meriwether v. Trustees of Shawnee State University raises many important questions about the scope of First Amendment rights to free speech and free exercise of religion, but this post will focus on only one: what is the nature of the free speech right held by public university faculty when they are teaching in the classroom? Part II will give background on the facts of Meriwether and the District Court’s dismissal of the case. Next, Part III will review the current Supreme Court jurisprudence on freedom of speech by public employees. Finally, Part IV will discuss why the Sixth Circuit should include the speech of public university faculty when teaching as protected speech under the First Amendment.
II. Factual Background
Dr. Nicholas Meriwether has taught at Shawnee State University since 1996. The focus of his time at Shawnee State and his career as a whole is the intersection of politics, philosophy, and ethics. Further, Dr. Meriwether is a man of faith, being a professing Christian and a member of the Presbyterian Church of America. Because of his faith, Dr. Meriwether believes that humans are created either male or female, and that this sex is a fixed attribute that cannot be altered from the time of conception. On the first day of his political philosophy class in the spring 2018 semester, Dr. Meriwether responded to a student’s question with the reply “yes, sir,” in accordance with his general practice of referring to all students in his classroom as “sir” or “ma’am” and calling upon them as “Mr.” or “Ms.”, followed by the student’s last name. According to Dr. Meriwether, the student appeared to be male in such a way that “no one upon seeing [the student] would have assumed that he was female.”
After class, the student, Doe, approached Professor Meriwether to inform him that Doe identified as female and wished to be called by female pronouns. After some hesitation, Dr. Meriwether responded that he was “not sure he could comply with Doe’s demand and that he was not sure students can dictate how professors must refer to them.” Doe was not satisfied with this answer and responded that “I guess this means I can call you a c**t.” Because of the aggression displayed by the student, Dr. Meriwether reported the incident to the chair of his department, and for the remainder of the term, he referred to Doe by last name only, using no pronouns or titles. After this incident, Shawnee State formally investigated Dr. Meriwether for violation of the school’s anti-discrimination policy, a process which culminated in a formal charge against Dr. Meriwether, a written warning, and the threat of further action, including termination, if Dr. Meriwether did not begin addressing students like Doe with pronouns based on gender identity.
At this point, Dr. Meriwether filed suit against the university alleging a violation of his rights to free speech and free exercise of religion. The District Court granted a motion to dismiss by Shawnee State in February 2020, adopting the recommendation of Magistrate Judge Karen Litkovitz. In doing so, the court largely based its decision on a 2006 case from the Supreme Court that held that a public employee’s speech is not covered by the First Amendment when the speech is made “pursuant to his official duties.” Thus, the District Court found that any speech made by a professor in the context of a classroom setting is, as a matter of law, unprotected by the First Amendment. Dr. Meriwether appealed the dismissal to the Sixth Circuit, which heard oral argument on the case on November 19, 2020.
III. Legal Background
As employees of a state institution, public university professors are considered “public employees” for the purposes of the First Amendment. In the 1968 case Pickering v. Board of Education, the Supreme Court established a framework for analyzing the speech of public employees under the First Amendment. In Pickering, a public-school teacher was fired for writing a letter to a local newspaper that critiqued the school’s methods of fundraising. The Court found that the letter was a manifestation of the teacher’s right as a citizen to comment on a matter of public concern, and held that the exercise of this right “may not furnish the basis for his dismissal from public employment.” The Pickering Court approached the free speech issue by weighing the teacher’s interest in expressing himself against the State’s interest as an employer in providing efficient public services. With regard to the fundraising letter, the Court found that the teacher’s interest outweighed that of the state, but the Court’s balancing test left ample room for the possibility that the state interest might prevail in future situations.
Such a situation arose in 1983 when the Supreme Court decided Connick v. Myers. The employee in Connick was not a schoolteacher, but instead an assistant District Attorney in New Orleans. After being transferred to a different section of court against her will, the employee distributed surveys to some of her co-workers asking about their satisfaction with supervisors and office policies. Soon after, she was fired for insubordination. The Supreme Court applied the Pickering analysis but focused particularly on whether the speech was actually a matter of public concern. Since the survey concerned only the employee’s personal dissatisfaction with the way her office was run and made only one peripheral comment on any topic that would interest any person outside of that office, the Court concluded that her speech was not on a matter of public concern, and therefore not protected by the First Amendment. Thus, Connick expanded the Pickering framework into a 2-part test, asking 1) whether the speech is on a matter of public concern and 2) if so, whether that individual’s interest outweighs that of the state as employer.
The most recent Supreme Court guidance regarding the speech of public employees came in 2006. Garcetti v. Ceballos was another case involving an assistant District Attorney, this time in Los Angeles. The employee claimed that he had been retaliated against after he reviewed a search warrant that had been improperly issued and he submitted a memo to his supervisor recommending that the case be dropped. The Garcetti Court also used the Pickering framework, but it focused on the element of “citizen” rather than the subject matter of the message. The Court began by articulating the two-part focus of the Pickering test–a test meant “both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions.” However, the Court then concluded that the employee “did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case.” Instead of a citizen commenting on a matter of public concern, the employee in Garcetti was speaking “pursuant to his […] official responsibilities.” Because preparing the offending memo was part of the employee’s professional responsibilities, the Court concluded that the employer had a right to evaluate the content of the memo and base employment decisions on its quality or lack thereof.
Garcetti involved a district attorney’s office, not a public university. Both the majority opinion and the dissent by Justice Souter expressed doubt over whether the same standard could be applied to the academic setting. Justice Kennedy, writing for the majority, noted at the end of his opinion that, “There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” The academic setting was the only arena noted by the court as a potential exception to the general “pursuant to official responsibilities” standard.
These three cases (Pickering, Connick, and Garcetti) form the framework under which courts evaluate the speech of public employees. The Sixth Circuit has applied Garcetti in a number of cases to determine that a public employee’s speech made pursuant to the duties of the job fell outside of the protection of the First Amendment. However, only two cases in the Sixth Circuit have considered Garcetti in a school context. The District Court in Meriwether based its decision primarily on these two cases, both of which concluded that teachers could not claim First Amendment protection over their choices of reading material that they used in the curriculum. In both cases, the court considered the issue of whether Garcetti should apply in the same way to all public employees or whether the Supreme Court intended to create an exception for teaching and scholarship. However, neither case settled the question, as both found that any exception to Garcetti’s “pursuant to official responsibilities” rule that might exist for academic teaching and scholarship were not applicable to the facts of either case at hand.
By interpreting Garcetti to mean that every word spoken by a professor in a classroom setting is unprotected by the First Amendment, the District Court misapplied the Supreme Court’s holding in that case. If the Sixth Circuit affirms the dismissal of Dr. Meriwether’s case, it will require every professor to “shed [his] constitutional rights to freedom of speech or expression at the schoolhouse gate.” The First Amendment applies to teachers too, and therefore the Sixth Circuit should apply the Pickering balancing test, rather than the Garcetti “pursuant to official duties” exception. This section will examine three reasons why the Sixth Circuit should overturn the District Court’s dismissal of Dr. Meriwether’s case and apply the Pickering test to his First Amendment claim. First, Part A will argue that the Supreme Court intended to create a flexible standard in Pickering and the District Court’s interpretation is anything but flexible. Next, Part B will make the case that Garcetti was never meant to apply to public universities. Finally, Part C will explain why this conclusion would be consistent with Sixth Circuit precedent as well as that of several other circuits.
A. Pickering’s Flexible Standard
The Supreme Court in Pickering created a flexible, workable standard for weighing the free speech interests of public employees against the constraints of their job duties. To hold that the First Amendment does not apply to public university professors would do more than simply undermine decades of free speech jurisprudence. Such an approach would also remove all flexibility in applying the Pickering test, because a court could not weigh a professor’s right to free speech against the interest of the university if the professor has no right to free speech.
In oral argument, counsel for Dr. Meriwether explained how the Pickering analysis might apply to the school setting with a hypothetical of two extremes. On the one hand, a professor might make incessant, gratuitous, racist slurs unrelated to the material that the school wishes to prohibit for the welfare of its students’ learning. In this case, the school’s interest is clearly much stronger than that of the professor, because students would be denied educational benefits. On the other hand, a school might compel a teacher to affirm the university’s ideology on a controversial subject related to the material he teaches. In this case, a professor’s interest in not being required to endorse a view he disagrees with clearly outweighs the school’s interest in maintaining an effective and efficient classroom. Anything in between these two extremes should be decided by balancing the interests against one another, considering the context as a whole, just as Pickering requires.
While it is true that Garcetti held that the speech of employees acting pursuant to their official duties is generally not covered by the First Amendment, this did not displace the Pickering analysis, but rather simplified it. Garcetti essentially found that in an employee’s official communications and work product, the employer interest was strong enough that it would almost always outweigh that of the employee. Certainly, it did not hold that public employees have no First Amendment rights while they are on the clock. According to Justice Kennedy’s opinion, “The employees retain the prospect of constitutional protection for their contributions to the civic discourse. This prospect of protection, however, does not invest them with a right to perform their jobs however they see fit.”
B. Garcetti was Never Meant to Apply to Universities
In his dissent in Garcetti, Justice Souter expressed his concern that the Court’s holding might be used to stifle the freedom of professors in colleges across the country to express their personal views within the classroom. He feared that the scope of the Court’s holding was “spacious enough to include even the teaching of a public university professor, and I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to . . . official duties.’” It was for this exact reason that the majority opinion specifically singled out the academic setting as one arena to which its analysis did not extend. The majority did not foreclose the possibility that its analysis might later be applied to certain situations involving academics, but it expressly declined at that time to extend its reasoning so far.
Not only did the Court limit its scope in Garcetti itself, but subsequent direction from the Supreme Court shows an overly broad reading of Garcetti is to be avoided. In Lane v. Franks, a case decided eight years after Garcetti, the Court cautioned about reading Garcetti’s “pursuant to official responsibilities” exception too broadly. The case involved a public employee who was fired because of testimony he gave after being subpoenaed in a criminal trial, and the Eleventh Circuit held that the employee’s testimony was made as a public employee and therefore was not protected speech. The Supreme Court disagreed, holding that even though the employee’s testimony was about his job, he was still speaking in his capacity as a citizen: “the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech.” In other words, there is a point at which a public employee, even when speaking purely about his job, moves outside of the employer interest and into personal, protected speech. Thus, although Lane did not concern public university classrooms, it did make clear that not all job-related speech is exempt from First Amendment protection, as the Eleventh Circuit had suggested.
C. Applying Pickering Instead of Garcetti would be Consistent with Precedent
In reaching the conclusion that Garcetti forecloses any First Amendment protection over a professor’s speech in the classroom, the District Court purported to be following Sixth Circuit precedent. However, the Sixth Circuit has never held that Garcetti applies to the context of a university classroom, and this was acknowledged in the District Court’s opinion. Instead, the court’s conclusion was based on the fact that the Sixth Circuit has not said that Garcetti should not apply – which is technically true. Never before has the Sixth Circuit expressly barred an application of Garcetti. Like the Supreme Court, the Sixth Circuit has always punted the issue, and there has not yet been a case that forced either court to address the question head-on. However, the Sixth Circuit can and must do so now.
The essence of the Garcetti rule is that it is a simplification, almost an automatic application, of the Pickering test. It isolates a situation where a public employee’s First Amendment interest will almost always be outweighed by that of her employer: when the employee is representing her employer through official communications or work product. Although the Sixth Circuit has not yet been forced to choose if Garcetti should be applied to public university classrooms, other circuits have decided the issue. If the Sixth Circuit holds that the Garcetti rule should not be applied, it will join three other circuits that have all concluded the same. Thus, such a holding would be consistent both with the Sixth Circuit’s past decisions and those of its sister circuits.
The Court should reach its conclusion in Meriwether v. Shawnee State by applying the Pickering test, balancing the University’s interest in having a teacher properly perform his duties with the teacher’s first amendment interest in commenting as a citizen on a matter of public concern. The Court should answer the question that was left open by the Supreme Court in Garcetti and conclude that a Professor’s academic expression in a classroom setting is presumptively citizen speech.
Now more than ever, courts must protect free speech on matters of public concern. The first element of the Pickering test asks whether the speech was made by a citizen on a matter of public concern. Dr. Meriwether’s manner of addressing a transgender student was a direct commentary on a highly controversial matter of public concern. Our country has long recognized that, especially in the context of higher education, freedom of thought and ideas is critical to protect. The “marketplace of ideas” that defines college education in the United States represents a search for truth that would be impossible if professors were forbidden from questioning or challenging widely held views in the classroom. Neither professors nor students should be compelled to espouse the ideologies of state actors, especially on deeply controversial issues involving an individual’s personal religious beliefs. To do so would require these citizens to shed their right to freedom of expression at the schoolhouse gate.
 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 507 (1969).
 Meriwether v. Trs. of Shawnee State Univ., No. 1:18-cv-753, 2020 U.S. Dist. LEXIS 24674 (S.D. Ohio Feb. 12, 2020).
 Id. at 3.
 Kevin Koeninger, Professor Challenges University Pronoun Policy at Sixth Circuit, Courthouse News Service (Nov. 19, 2020), https://www.courthousenews.com/professor-challenges-university-pronoun-policy-at-sixth-circuit/.
 Complaint at 13, Meriwether v. Trs. of Shawnee State Univ., No. 1:18-cv-753, 2020 U.S. Dist. LEXIS 24674 (S.D. Ohio Feb. 12, 2020).
 Id. at 14.
 Id. at 13.
 Id. at 18.
 The student involved in the incident with Dr. Meriwether is referred to as Doe in all court proceedings, to protect the student’s anonymity.
 Complaint, supra note 5, at 19.
 Id. at 21.
 Id. at 29-31.
 Complaint, supra note 5.
 Meriwether v. Trs. of Shawnee State Univ., No. 1:18-cv-753, 2020 U.S. Dist. LEXIS 24674 (S.D. Ohio Feb. 12, 2020).
 Garcetti v. Ceballos, 547 U.S. 410 (2006).
 Report and Recommendation at 25, Meriwether v. Trs. of Shawnee State Univ., No. 1:18-cv-753, 2020 U.S. Dist. LEXIS 24674 (S.D. Ohio Feb. 12, 2020).
 Court to consider whether Ohio university violated professor’s First Amendment rights, Alliance Defending Freedom (Nov. 18, 2020), http://www.adfmedia.org/News/PRDetail/10842
 Pickering v. Bd. of Educ., 391 U.S. 563, 567 (1968).
 Pickering v. Bd. of Educ., 391 U.S. 563 (1968).
 Id. at 566.
 Id. at 574.
 Id. at 568.
 Id. at 573-74.
 Connick v. Myers, 461 U.S. 138 (1983).
 Id. at 140.
 Id. at 141.
 Id. at 144-45.
 Id. at 154.
 Id. at 148.
 Garcetti v. Ceballos, 547 U.S. 410 (2006).
 Id. at 413.
 Id. at 414.
 Id. at 420.
 Id. at 422.
 Id. at 424.
 Id. at 421-22 (“Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”).
 Id. at 425, 438.
 Id. at 425.
 Savage v. Gee, 665 F.3d 732 (6th Cir. 2012) (holding that an university employee’s speech regarding recommendation of reading material for incoming freshman was not protected by the First Amendment); Evans-Marshall v. Bd. of Educ. of the Tipp City Exempted Vill. Sch. Dist., 624 F.3d 332 (6th Cir. 2010) (holding that a high school teacher’s curriculum choices were not protected speech).
 Savage, 665 F.3d 732 (6th Cir. 2012); Evans-Marshall, 624 F.3d 332 (6th Cir. 2010).
 Savage, 665 F.3d at 739 (“even assuming Garcetti may apply differently, or not at all, in some academic settings, we find that Savage’s speech does not fall within the realm of speech that might fall outside of Garcetti’s reach.”); Evans-Marshall, 624 F.3d at 343 (“Garcetti’s caveat offers no refuge to Evans-Marshall. She is not a teacher at a “public college” or “universit[y]” and thus falls outside of the group the dissent wished to protect.”).
 Oral Argument at 9:35, Meriwether v. Trs. of Shawnee St. Univ., No. 20-3289, Nicholas Meriwether v. Francesca Hartop et al (6th Cir. Mar. 16, 2020), Court Audio | Sixth Circuit | United States Court of Appeals (uscourts.gov).
 Oral Argument at 11:00, Meriwether v. Trs. of Shawnee St. Univ., No. 20-3289, Nicholas Meriwether v. Francesca Hartop et al (6th Cir. Mar. 16, 2020), Court Audio | Sixth Circuit | United States Court of Appeals (uscourts.gov).
 See supra note 36 and accompanying text.
 Garcetti, 547 U.S. at 422.
 Id. at 438 (Souter, J., dissenting).
 Lane v. Franks, 573 U.S. 228 (2014).
 Id. at 231.
 Id. at 240.
 See Adams v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550 (4th Cir. 2011) (Garcetti does not apply “in the academic context of a public university”); Demers v. Austin, 746 F.3d 402 (9th Cir. 2014) (holding that Pickering and not Garcetti applies to teaching and scholarship); Buchanan v. Alexander, 919 F.3d 847 (5th Cir. 2019) (applied the “well known Pickering-Connick balancing test” to a public university professor’s First Amendment complaint without even mentioning Garcetti).