The federal courts are creating a new constitutional right: Public-college teachers can now impose their religious beliefs on students. Only two such cases have been decided thus far, but their rulings come from high federal courts, one from the U.S. Supreme Court and the other from a federal court of appeals. Their similarity of approach, and their resemblance to other extravagant recent treatments of religious liberty by the justices, is grounds for alarm.
Nicholas Meriwether, who teaches philosophy at Shawnee State University, in Ohio, and routinely addresses students as “Mr.” or “Ms.,” refused to address a transgender woman by the pronouns or honorifc she uses. Meriwether explained that he was not willing “to communicate a university-mandated ideological message regarding gender identity” that conflicted with his Christian beliefs. When he sued the university for violating his rights to free speech and equal protection, a district court found that the student “dreaded participating in plaintiff’s class but felt compelled to do so because plaintiff graded students on participation.” The college had tried to accommodate Meriwether by proposing that he refer to all students by first or last names only, without using gendered titles for any of them. That would have treated everyone equally, and it would not have required him to say anything he did not believe.
Meriwether refused, declaring that titles “foster an atmosphere of seriousness and mutual respect that is befitting the college classroom.” Instead, he proposed using the last name, without a gendered honorific, for the transgender student only. Of course, “seriousness and mutual respect” would have then been unavailable to her, and her alone. She would be conspicuously singled out, treated worse than all other students.
The United States Court of Appeals for the Sixth Circuit, in an opinion written by the Trump appointee Amul Thapar, declared that teachers’ academic freedom “covers all classroom speech related to matters of public concern, whether that speech is germane to the contents of the lecture or not.” Meriwether “advanced a viewpoint on gender identity.” Moreover, “the First Amendment interests are especially strong here because Meriwether’s speech also relates to his core religious and philosophical beliefs.”
Racism and sexism are also matters of public concern, and they have sometimes had religious justifications. Suppose a teacher thought it appropriate to address only the Black students by their first names, a demeaning treatment that was once common, to signify their subordinated status. Does Judge Thapar think that prohibiting that would cast “a pall of orthodoxy over the classroom,” as he wrote in Meriwether v. Hartop, and “transform institutions of higher learning into ‘enclaves of totalitarianism’”?
In the second case, Joseph Kennedy, a high-school football coach, insisted on publicly praying on the 50-yard line after games, “allowing” students to join him. The coach has unlimited discretion to decide who plays. Students who don’t play won’t get football scholarships. The school district tried to find an accommodation, but Kennedy refused to so much as speak to the administration about that and was suspended. Kennedy sued, claiming to be a victim of religious discrimination. The trial judge in Joseph A. Kennedy v. Bremerton School District wrote: “Players (sometimes via parents) reported feeling compelled to join Kennedy in prayer to stay connected with the team or ensure playing time, and there is no evidence of athletes praying in Kennedy’s absence.” Kennedy never asked to pray alone. He later said that the reason he was litigating was for the sake of “helping these kids be better people.”
This is bad news for public universities that want to protect their students from racial slurs, religious coercion, and other forms of harassment.
Kennedy appealed, and the case went to the Supreme Court, which, in an opinion by Neil Gorsuch (another Trump appointee), ignored the pressure on students and declared that the coach’s prayer was private and had to be permitted.
In both Meriwether and Kennedy, the judge and the justice refused to acknowledge the harm to students. Thapar argued that because the transgender student got a good grade, the university had not justified its actions against Meriwether. That this student endured enormous stress, and that other students may not be able to handle such stress so well, is given zero weight. Gorsuch seized on the university’s concession that there was “no evidence that students” were “directly coerced to pray with Kennedy.”
Both Thapar’s and Gorsuch’s opinions disable the state from protecting students. Both say that the state has acted arbitrarily unless the harm has already happened, and the state can prove it in court. But this misapprehends the whole notion of risk. The Kennedy decision hamstrings colleges that seek to prevent this kind of intimidation. It requires testimony in open court from students courageous enough to face retaliation in their communities. Families who complain about establishment-clause violations already face stigma, loss of jobs, and even violence. (I explain this weird new right to mistreat students in more detail in a forthcoming law-review article.)
The classic liberal answer to the problem of religious diversity is to create a private sphere where citizens are free to worship in ways that other citizens find repugnant. But in America, where the Constitution prohibits state establishment of religion, religious people may not demand a right to invade and direct the public sphere, to alter the delivery of state functions in order to force their views upon nonadherents. Here, as elsewhere, the Supreme Court is distorting settled law in order to guarantee that religious people win every claim they bring to court.
This is bad news for public colleges — at least, those that want to protect their students from racial slurs, religious coercion, and other forms of harassment. In Kentucky, Michigan, Ohio, and Tennessee, the states where Sixth Circuit precedent is binding, it is uncertain whether a university may constrain a faculty member in any way that would (as the Meriwether ruling put it) “alter the pedagogical environment in his classroom.” Teachers have a right to communicate what they believe to be true. They should not have a right to mistreat their students.
