Litigation Update: Meriwether v. Hartop

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome, everyone, to this Federalist Society Teleforum conference call as this afternoon, May 27, 2021, we have a litigation update on a case called Meriwether v. Hartop. I'm Nick Marr, Assistant Director of Practice Groups here at The Federalist Society. As always, please note that expressions of opinion on today's call are those of our expert.

 

      We're very pleased to be joined this afternoon to review this case by Mr. Casey Mattox. He's Vice President for Legal and Judicial Strategy at Americans for Prosperity. After Casey reviews the case, goes the recent Sixth Circuit ruling, and previews where this case might go, we'll open up the floor for audience questions. So have those in mind and get ready to ask those when we get to that portion of the call.

 

      All right. Thanks very much for being with us. Mr. Casey Mattox, the floor is yours.

 

Casey Mattox:  Great. Thank you, and thanks to The Federalist Society for hosting this. Hopefully, this will be an interesting conversation about an interesting case.

 

      In Meriwether v. Hartop, the Sixth Circuit recently in late March issued a noteworthy opinion allowing a professor's First Amendment claims to go forward against Shawnee State University arising from his discipline of him for his refusal to use a student's preferred pronouns. Before I get into the substance of the case, here are some of the important strands of case law that converge in this case.

 

      First, you have the question about government speech or, rather, government employee speech and its protection under the First Amendment. And there's a case from about 15 years ago in Garcetti where the Supreme Court addressed a Los Angeles police department's discipline of a public -- a police department employee who publicly spoke out about the department's conduct in a specific investigation. And it held in that case that when public employees make students pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

 

In dissent, Justice Souter warned that Garcetti could imperil First Amendment protection of academic freedom in public colleges and universities where, of course, faculty members are government employees and where teachers necessarily speak and write pursuant to their official duties. Justice Souter feared that professors could be punished for simply teaching an unpopular or controversial subject because teaching is unquestionably within the job duty of university professor.

 

The Garcetti majority recognized the importance of academic freedom but chose not to decide the question.  The Court said that it would not, "decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching." And that has spawned several cases around the country where lower courts have had to resolve this question since Garcetti, so far -- concluding that Garcetti does not apply in the context of university faculty, not extending the case in this context.

 

For example, in Adams v. The Trustees of UNC-Wilmington, the Fourth Circuit held that a university's refusal to promote a faculty member because of columns he wrote at Townhall and other comments that he had made, were not covered by Garcetti, and so, the normal test for a public employee of free speech applied.

 

So where Garcetti doesn't apply under the Pickering-Connick analysis, a government employee's speech is protected if the speech relates to a matter of public concern and if the employee's First Amendment interest outweighs the government need for efficiency as an employer. So that's one big issue in this case.

 

Compelled speech, obviously, this is a case where the school's not restricting him from speaking, it's ordering him to speak. And so, in Janus, Nicola, Hurley, and other decisions in recent years, recent decades even, the Supreme Court has been particularly strong in defending against compelled speech, and that's essentially the type of First Amendment issue at stake here.

 

There's a free exercise claim in this case, as well. Obviously, the Supreme Court is presently considering a major case on the Free Exercise Clause in the Fulton case. That, at least, could potentially name the Employment Division v. Smith is overturned or, at least, modified in some way, and that will be relevant to the ultimate analysis of the free exercise claims in this case.

 

      But even under the existing law from Masterpiece Cakeshop and other cases that the Court has recently decided, particularly under the shadow docket, under the Free Exercise Clause, the Court has been particularly careful recently to say that expressions of hostility against religion can undermine the general applicability of a government action. And then, of course, you have Title VII and Title IX, and decisions interpreting sex to include gender identity which also is, obviously, a significant part of the backdrop of this case.

 

      So, first of all, to lay out the facts at issue, and because this is a motion to dismiss, of course, the Sixth Circuit had to accept the facts pleaded as true, so we'll also do that here. And it makes my job slightly easier in describing the case as it came to the Sixth Circuit, as the Court itself laid it out and as the pleadings laid the case out.

 

      Nicholas Meriwether is a philosophy professor at Shawnee State, a small public college in Ohio. He's been at the school for 25 of the 30 years that Shawnee State has awarded degrees, serving in the faculty senate, and otherwise has been a mainstay of the university during his time. Up until the incident that triggered the lawsuit here, he has had no disciplinary record of any kind. He is a devout Christian. He believes that God created human beings as male and female, that sex is fixed in each person from the moment of conception, and it can't be changed. He also believes that he can't affirm things that are true ideas and concepts that are not true, confirm as true things that are not true.

 

      Being faithful to his religion has never been a problem at Shawnee State until 2016. According to the pleadings, at the start of the school year, Shawnee State had emailed faculty informing them that they had to refer to students by their preferred pronouns. Meriwether asked university officials for more details about this new pronoun policy, and they confirmed that professors would be disciplined if they referred to use a pronoun that reflects a student's self-asserted gender identity.

 

      The policy applied regardless, and the communication from the school specifically said that the policy applies, regardless of the professor's convictions or views on the subject. Meriwether asked to see the revised policy, but university officials simply pointed him to the school's existing policy prohibiting discrimination because of gender identity. So there had not been propagation of a different policy specifically on this point. This is an interpretation of the prior policy.

 

      That policy applies to all of the university's employees, students, visitors, agents, and volunteers. It applies at both academic and non-academic events. It applies on all university property including classrooms, dorms, and athletic fields. And in some cases, it applies off-campus. So it's a pretty broad policy that the school is interpreting to apply in this context.

 

      When Meriwether approached his department chair, according to the pleadings, she was derisive and scornful, said that Christians are primarily "motivated out of fear," that's a quote, and should be "banned from teaching courses regarding that religion." She added that the presence of religion in higher education is, in her view, counterproductive.

 

      Meriwether continued to teach students without incident until January of 2018. He uses the Socratic method in class to lead discussion in his course on political philosophy. And when using that method, he addresses students as Mr. or Mrs. He's done this for years. He believes that this is a more formal manner of addressing students, helps them to view the academic enterprise more seriously with more weighty approach, and it fosters an atmosphere of mutual respect. He found that addressing students in this fashion is an important pedagogical tool, and so that's the system that he uses.

 

      In that first class, one of the students Meriwether called on was a student we will refer here Doe. By outward appearance, Doe presented as male. In his view and, at least, according to the pleadings, there is nothing that would have otherwise indicated. Meriwether responded to a question from Doe by saying, "Yes, sir." This was Meriwether's first time meeting Doe and he had no other information from the school about Doe.

 

      After class, Doe approached Meriwether and demanded that Meriwether refer to Doe as a woman using feminine titles and pronouns. According to the pleadings—this is obviously a key aspect here—according to the pleadings, Meriwether paused before responding because he felt that his sincere religious beliefs prevented him from communicating messages about gender identity that he believed were false. He was surprised and paused in the way he responded.

 

      He then explained he wasn't sure if he could comply with Doe's demands. Doe then became hostile and approached him in a threatening manner, and then said—and I will see if I can figure out a way to frame this— "I guess this means I can call you -- " and used a slur that would be a common gendered slur aimed more commonly at women, if that's vague enough.

 

Doe threatened to get Meriwether fired. Meriwether reported the incident to senior university officials, and they then informed their Title IX office of the incident. They met with Doe and escalated the complaint to the dean. The dean went to Meriwether the next day where she advised that he eliminate all sex-based references from his expression, so no he or she, him or her, Mr. or Mrs., and so on.

 

Meriwether pointed that eliminating pronouns altogether was next to impossible, especially when teaching, so he proposed a compromise. He would keep using pronouns to address most students in class but would refer to Doe using only Doe's last name. The dean accepted that compromise, apparently believing that that actually was in compliance with the university's gender identity policy.

 

Doe continued to attend and participate in the class but remained dissatisfied, and two weeks into the semester complained again to university officials. This time, the dean told Meriwether that if he did not address Doe as a woman, he would be violating the university's policy. Soon after Meriwether then, accidentally, according to the complaint, referred to Doe using the title Mr. before immediately correcting himself. Doe then complained to the Title IX coordinator and threatened to retain counsel if the university didn't take action.

 

The dean once again came to Meriwether, reiterated her earlier demands. Meriwether asked whether the university's policy would allow him to use student's preferred pronouns but place a disclaimer in his syllabus that noted he was doing so under compulsion and setting forth his own views on the question. The dean rejected that option. She insisted that putting a disclaimer in the syllabus would itself violate the university's gender identity policy.

 

After the semester proceeded, Meriwether continued to look for some form of accommodation, but Shawnee State refused those suggestions for accommodations. The dean had sent Meriwether another formal letter stating he must address Doe "in the same manner as other students who identify themselves as female." The letter said if Meriwether did not comply, the university may conduct an investigation and subject him to disciplinary action. Then, just a few days later without any response from Meriwether, the dean announced that she was, in fact, initiating a formal investigation because of another complaint from a student in Meriwether's class. It turns out that complaint from the same student, from Doe.

 

Meriwether asked for an accommodation. The dean refused. She then told him he had two options: stop using all sex-based pronouns in referring to students or refer to Doe as female. The dean referred the matter to the Title IX office, and after several months, the office interviewed four witnesses, Meriwether, Doe, and two other transgender students at the school. The timeline office determined that Meriwether's disparate treatment of Doe had created a hostile environment.

 

In violation of the non-discrimination policies, the Title IX report concluded that because Doe perceives themself as a female, and because Meriwether has refused to recognize that identity, that he had created a hostile environment. Over the course, the report did not address Meriwether's religious objections and his arguments against using the student's preferred pronouns. The dean determined that in order to create a "safe educational experience for all students, it was necessary to discipline Meriwether," and she recommended placing a formal warning in his file.

 

The provost was tasked with reviewing the disciplinary recommendation before it was imposed. Meriwether wrote the provost a letter stating that he treated Doe exactly the same as he treated all male students, and he began referring to Doe without pronouns and by Doe's last name as an accommodation. Meriwether also again explained his religious convictions. The provost approved the recommendation of disciplinary action, and Shawnee State placed the written warning in Meriwether's file. The warning reprimanded Meriwether, directing him to change the way he addressed his transgender students to avoid any further corrective actions which could include suspension without pay and termination.

 

Through the process, over the course of the year, the student stayed in the class, and ultimately was active in the class, participating in the class, and received a high grade in the class from Professor Meriwether, which will also be relevant later. After the warning was issued and placed in his file, the Shawnee State Faculty Union actually filed a grievance on Meriwether's behalf and asked the university to vacate the action. The provost who had reviewed the original decision but then passed the deciding grievance -- the provost had at this meeting, according to the pleadings, repeatedly interrupted the representative and refused to discuss the academic freedom and other First Amendment issues.

 

In the case, at one point during the hearing, the provost "openly laughed," according to the complainant, while the union rep explained his academic freedom and religious objections. The provost denied the grievance. The next step would have been an appeal to the president of the university, but just after the provost denied the grievance, he was then appointed as interim university president. So he designated two of his representatives to review the decision on his behalf. Those officials agreed with the union that Meriwether's conduct had not created a hostile educational environment. But they, nevertheless, recommended a ruling against Meriwether, saying that this was not really a hostile environment case after all; it was instead a differential treatment case.

 

This change, in theory, contradicted the original Title IX investigation and disciplinary decision, both of which had been on the basis of creating a hostile environment for Doe. University officials justified the refusal to accommodate Meriwether's religious beliefs, saying that they were -- or comparing them to a hypothetical faculty member who would also have objections on the race or gender discrimination issues.

 

The provost, now the president, adopted the findings and denied the grievance again. That was the end of the process at Shawnee State. And so the result of the warning in his file is that, according to pleadings, is that, essentially, the next time something like this happens, he is potentially subject to being suspended without pay or to being terminated. It would also make it difficult for him to be able to get a position at another school.

 

So Meriwether, through his attorneys at ADF, allege that the university had violated his rights under the Free Speech and Free Exercise Clauses, the Due Process and Equal Protection Clauses, and other state and contract claims. District court referred the case to a magistrate judge. Doe and another organization, Sexuality and Gender Acceptance, then moved to intervene, and all of the defendants filed 12(b)(6) motions. The magistrate recommended dismissing all of Meriwether's claims, and the district court adopted that recommendation.

 

So this gets us to the Sixth Circuit decision. The Six Circuit panel was Judge Thapar, McKeague, and Larsen. Thapar wrote the unanimous panel decision. It begins by rejecting the district court's holding that faculty speech in the classroom is unprotected by the First Amendment. Citing the Supreme Court's rejection of compelled speech in Janus and other cases in recent years, the panel said that, "without genuine freedom of speech, the search for truth is stymied, and ideas and debates necessary for the continuous improvement of our Republic cannot flourish."

 

The court said the free speech protections in universities -- the First Amendment would apply to universities, obviously, citing many cases to that effect. However, the panel then turned to the key issue in this and other faculty speech cases, this Garcetti question. Free speech rules obviously, as I mentioned before, apply differently when the government is doing the speaking, and that remains true when a government employee is doing the talking.

 

Thus, in Garcetti v. Ceballos in 2006, as I mentioned before, the Supreme Court had held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

 

So how does Garcetti affect academic freedom? That's the open question. Noting that Garcetti had expressly declined to address whether its analysis would apply "to a case involving speech related to scholarship or teaching," the panel concluded that Garcetti was inapplicable. That brings that Sixth Circuit into line with the Fourth, Fifth, and Ninth Circuits that had rejected university attempts to extend Garcetti to limit the free speech and academic freedom rights of faculty members over the last 15 years.

 

The court traced the Supreme Court's reminders of the special place universities are supposed to play in our society, went to the 1957 decision in Sweezy v. New Hampshire where the New Hampshire officials had sought access to classroom content of New Hampshire professors in order to determine whether the lectures were "subversive." The Supreme Court said then that the essentiality of freedom in the community of American universities -- or "affirmed the essentiality of freedom in the community of American universities," and said that a faculty member's "right to lecture" was beyond dispute.

 

About a decade later in Keyishian v. Board of Regents, the Court had again rejected attempts to limit the First Amendment's application to subversive faculty, characterizing academic freedom as a special concern of the First Amendment, and things the First Amendment does not tolerate laws that cast a pall of orthodoxy over the classroom. Now, Sweezy and Keyishian, the Sixth Circuit Panel held, established that "the First Amendment protects the free speech rights of professors when they are teaching."

 

Reviewing its own holdings, the panel held, simply put, professors at public universities retain First Amendment protections, at least when engaged in core academic functions such as teaching and scholarship. Emphasizing why this must be the case the court wrote, "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."

 

The university and the interveners responded that Garcetti applies, and that the Court's decisions on academic freedom in Sweezy, Keyishian, and all of these cases that have come before Garcetti, are now inapplicable. The panel rejected that invitation, saying that it remains bound by what the Supreme Court has said and its own precedent on academic freedom. The defendants and the interveners also argued that the use of pronouns in the classroom is simply not a matter of academic freedom, that it's essentially more of a ministerial type of an act.

 

The panel rejected that argument, saying that Meriwether's use of pronouns is about how he leads the classroom discussion, and that shapes the content. By refusing even to allow Meriwether to discuss the question in his syllabus, it has shut off what could have been a robust discussion in the classroom, according to the panel.

 

And then, the panel also notes that the same power that the defendants and interveners would assert over faculty would also allow them, another university, or state legislature, I guess, for that matter, to similarly take the position that faculty were prohibited from using students' preferred pronouns. And there does not seem to be a response to that argument from the school. Thus, Garcetti can apply because the need for the free exchange of ideas in the college classroom is unlike that in other public workplace settings, and professors in-class speech to the students is anything but speech by an ordinary government employee, according to the Sixth Circuit.

 

The panel rejected the attempt, and also rejected the attempt by the university to make academic freedom only the providence of the school itself. This has been an open question to some degree. When we say academic freedom, do we mean the academic freedom of the institution or of the faculty members? The university here tried to argue that academic freedom was the providence of the school itself. The Sixth Circuit rejected that argument.

 

The defendant then argued that Meriwether's speech was, nevertheless, unprotected under the Connick-Pickering framework. So, as I mentioned before, if Garcetti doesn't apply, then the standard policy for government employee speech is now the question. And under the Connick-Pickering approach, the -- under Pickering, the panel needs to balance the interests of the professor as a citizen in commenting upon on matters of public concern and the interests of the state as an employer in promoting the efficiency of the public services it performs through its employees. Connick is also concerned with whether or not the speech is, in fact, on a matter of public concern.

 

On one side, the court -- as to whether it was a matter of public concern, the court says, "Look, there’s an amicus brief filed by, I think, about a hundred different faculty members saying that in this context of speech 'concerns a struggle over the social control of language and a crucial debate about the nature and foundation or, indeed, real existence of the sexes.'"

 

The court also points out that, of course, the fact that we were even here, that the university itself thinks this is a hot issue, helps to demonstrate that this is, in fact, a matter of public concern. Under the Pickering test, the court recounts the arguments about the importance of academic freedom for society, for the students in the classroom, and for the faculty member himself, saying that these are weighty interests.

 

It didn't look at the university's interests in forbidding discrimination against transgender students. The panel distinguished between an interest in preventing employment discrimination under Title VII, which the Supreme Court and the Sixth Circuit recently addressed, and authorizing government to compel speech on these issues here, and said that there is not a compelling interest in the latter just because there is an interest in the former.

 

On the facts, the panel goes back to the fact that Meriwether had offered a compromise that was, in fact, initially accepted by the dean, and that Doe participated in class under that plan and, in fact, received a high grade, seeming to disprove that there had, in fact, been a hostile environment that prevented Doe's ability to receive an education. There's no evidence at this stage, the panel held, that Meriwether's speech actually inhibited his duties in the classroom, or hampered the operation of the school, or denied Doe any educational benefits.

 

Without that, the school's actions "mandate orthodoxy, not anti-discrimination," and ignore the "tolerance is a two-way street," which is the Sixth Circuit quoting its own opinion from a decade or so ago in the Ward case. Thus, the balance was in favor of Meriwether and his free speech claim. As to the free exercise claim under Smith, neutral and generally applicable rules are not subject to strict scrutiny even when they burden religious exercise, but under Lukumi, Masterpiece Cakeshop, and others, hostility may be evidence of a lack of neutrality.

 

According to the court, under Masterpiece Cakeshop, Meriwether was entitled to a neutral decision maker who would give full and fair consideration to his religious objection if he sought to assert it in all the circumstances of his case. And in recounting the facts, the court did not believe that he had had a neutral decision maker.

 

The court also noted irregularities, the fact that the basis for the violation had changed up to the last minute from it being a hostile environment claim and then suddenly becoming a differential treatment claim at the very end. And it said that he had shown enough there to be able to get past the motions in this stage of his free exercise claims. Applying strict scrutiny, then, the court didn't -- the school didn't even argue that its requirements would comply with strict scrutiny as to the free exercise claim.

 

Implications of the case -- well, first let me say that as to current status, the defendants have filed a motion for rehearing en banc. I believe that ADF is supposed to respond to that within the next week or so. A number of amicus briefs have been filed on behalf of the school in that process. So that will be the next big step in this case, is whether the Sixth Circuit takes the case en banc.

 

Implications of this case -- I think the implications would be stronger if the court had gone the other way because, I mentioned before, this is, I believe, now the fourth case where a court of appeals has said that the Garcetti decision does not apply to university faculty members. It is noteworthy to me that while there are some odd bedfellows on an issue like this, some of the major organizations one might expect to weigh in on issues of academic freedom have, at least as far as I can tell, have so far not weighed in on this case at this point.

 

With that, I think I will stop there and see what questions we have, and make sure we have a good amount of time to get those answered.

 

Nick Marr:  Great. Thanks for that great overview, Casey. We'll open the floor now for questions. And we've got one question that just popped up. Okay, first caller.

 

Sean Gates:  Hi, it's Sean Gates. It's a very interesting topic to me because I helped try a case -- helped ADF try the Jack Phillips case. And we ended up having to do a trial without referring to the plaintiff by any pronoun, which is challenging.

 

      But my question is what are the implications of the Sixth Circuit's decision for other areas, work place issues, lawyers in front of courts, etc., because as you described it, it sounded as though it's very narrow and very much focused on academic freedom. But when I remember reading some of the language in the case, it seemed a pretty broad application of First Amendment rights. So where does that land and what are the implications for other outside of universities?

 

Casey Mattox:  That's a great question. So I think there's kind of two tracks on that. One is public employees, and then everybody else. As to public employees, I will say that I personally am not a big fan of Garcetti. I'm not a big fan of the stricter limitations that it placed on government employee speech. But Garcetti remains the law, and so as to other government employees outside the academic freedom context, Garcetti would almost surely apply.

 

      You would then -- it's going to be difficult, I think, for other government employees to be able to make a strong First Amendment claim. But as to the others, certainly the language from the Court's opinion is strong in support of free speech rights. And you do have the language that I'm sure that would be picked up on that sort of distinguishes the difference between mandating nondiscrimination and employment versus limiting First Amendment rights.

 

      So I think that would probably be picked up on in a different kind of case, that these are not necessarily the same thing. Prohibiting discrimination by employers doesn't necessarily mean you must limit First Amendment rights in the process. But I think we'll have to wait to see the context in which those cases arise, I guess.

 

Sean Gates:  And then when you said, "other public employees," I'm not deeply familiar with Garcetti, so for other public employees, if they're required, for example, just in the day-to-day activities of their employment to refer to others by their preferred pronoun, would that come under Garcetti, or is it only when they're kind of speaking on behalf in some way for the government?

 

Casey Mattox:  Yeah. Restate that again for me.

 

Shawn Gates:  Yeah, I'm wondering for public employees in the day-to-day world, they're going to be required by these antidiscrimination policies to refer to other employees. For example, by, or maybe even -- well, start with employees by their preferred pronoun, which seems to me kind of non-public speech, if you will. And so I'm asking whether Garcetti would apply to that, or does it only apply to, for example, when those public employees are interacting with the public or somehow speaking on behalf of the government?

 

Casey Mattox:  Yeah, I guess Garcetti would be principally aimed at situations where people are speaking outside of the government context because in most cases, even under the Connick-Pickering analysis, if your speech is entirely internal, it would be harder to make a case for the the matter of public concern argument because that looks a lot more like a workplace dispute kind of problem.

 

      So it may be that the answer is it would be difficult to have a First Amendment claim in those

      cases, but for different reasons. One, because you are sort of acting as a government employee even for speaking externally, Garcetti is going to apply and say you're essentially on the clock, and so, therefore, you don't have free speech rights in the same way. And then, in other contexts where you're speaking internal to other government employees, you're just going to have a much more difficult time making a traditional First Amendment claim because you're likely not speaking on a matter of public concern.

 

Sean Gates:  Okay. And, I guess, lastly, what are the implications for this for the religious accommodation jurisprudence under Title VII?

 

Casey Mattox:  Yeah, that's a good question. You're speaking specifically there, I guess, of as it would apply, I would assume, to private employers, right?

 

Sean Gates:  Sure, let's start there.

 

Casey Mattox:  Yeah. I mean, I think it will be -- a lot of the language in the case is obviously aimed at the government employee speech Garcetti problem, and so a lot of even the really strong free speech languages talking about the importance of academic freedom and faculty speech and those kinds of things. But I think that there is, again, the point in the case in the opinion that distinguishes between Title VII mandating employment nondiscrimination and that not necessarily having anything to say as to the free speech rights of people, I think, will probably be something we will see cited.

 

Sean Gates:  Thank you.

 

Casey Mattox:  Yep.

 

Nick Marr:  I think we'll go onto our next question.

 

Caller 2:  Yes, thanks very much. Unfortunately, I joined a little late, and so I'm going to definitely need to download the podcast recording, if one's going to be made, to catch everything you've provided.

 

So this was a survival of a summary judgement motion, so obviously, it's a long way from precedential and obviously limited to the Sixth Circuit. Just curious about the strength of the rest of the case. I think I heard you say something or other about the possibility of the Sixth Circuit rehearing it en banc, and then I don't know whether it's likely to be picked up by the Supreme after that. But I worry -- it seems like if it's not an erosion of Employment Division v. Smith, at least it's a path around certain circumstances for public academics, I guess, and whether it can be expanded beyond that.

 

      How strong do you think the case is going to be on the merits, now that we've gotten past summary judgement? And do you have any opinion about its efficacy in providing a path around Smith?

 

Casey Mattox:  Yeah. And to clarify, too, this is actually a motion to dismiss, so it's even a notch below a summary judgement motion. So we're having to accept the facts as pleaded, to your point, so I don't have much of a reason to say why that's -- I have no reason to doubt the facts as pleaded, I guess. That will obviously be important going forward in this case.

 

      My guess would be, and others can tell me that I'm wrong here, but I would be surprised if the Sixth Circuit took up a case where it was a 3-0 panel opinion. And on an issue where it's now in line with -- at least on the Garcetti question it, would seem to be in line with the views of three other circuits. I don't think there's a circuit split at this point. I think, as I read this, this is basically a question left open by the Supreme Court in Garcetti that four circuits have now answered that Garcetti doesn't apply in the university context.

 

      I'm sure that people will explain to me how there is, in fact, at least some sliver of a conflict on some aspect, but I would think on the free speech claim that it would be difficult to make that case. On the free exercise claim, my guess is that we will probably end up with at least a lot of the ways that the court is talking about, the free exercise claim will have to be rethought in a few weeks after we get a Fulton decision, and we see how that applies.

 

      So it may very well be that this isn't the vehicle to address that question, largely because there's another vehicle sitting before the Court that will largely reshape the way we think about the free exercise issues.

 

Caller 2:  Got it. And if I could ask a quick follow-up as well, just since this is being addressed as a free exercise context for public academic. If you sort of flipped the script and said, well, what if it was a private institution, and it was an academic -- let's say, a religiously affiliated institution, and an academic there was insisting on taking the opposite position? It seems as though the way the law is developing, it wouldn't necessarily cut the other way because it sounds like Garcetti is focused on public institutions, whereas a private institution might have more control over its faculty in that regard.

 

Casey Mattox:  Yeah, that's right. So I think in the private university context, the two major issues to address would be you'd have a freedom of association-type claim for the school itself. If you had a religious school or something, and it had a position on this question, and you had a faculty member who is doing something contrary to the instruction from the school, you don't have so much First Amendment -- the First Amendment interest would be different. If you had government trying to require something of the school, you obviously have its own First Amendment interest at stake, free exercise or freedom of association.

 

      But then on the other strand there, there was the case recently out of Wisconsin where, I guess, Marquette University -- where Marquette had contractual promises of academic freedom for its faculty members, and then the Wisconsin Supreme Court ultimately decided that the court had failed to hold its side of the bargain in the contract. So you can certainly still have contractual claims against religious schools, or any other, where they have made promises of academic freedom sufficiently clear enough that it’s a real contractual obligation and then sort of reneged on those promises.

 

Caller 2:  Interesting. Very good. Well, thank you very much. Fascinating update. Going to try to watch the case as it moves forward.

 

Nick Marr  All right, we have a next question.

 

Caller 3:  Thank you very much. My understanding is that the process by which we get here is through a Title IX internal investigation and, eventually, a collective bargaining agreement process. My question to you would be how much of these different internal grievance procedures should we be looking at with regard to this? Thank you.

 

Casey Mattox:  I'm sorry, I missed the very beginning of that. How much should we be looking at?

 

Caller 3:  So there's a lot to be said about exactly how it would get here. My understanding was this was a Title IX and then, eventually, it goes through a collective bargaining agreement where --

 

Casey Mattox:  -- Right.

 

Caller 3:  Okay. So how much should we be looking toward the different grievance procedures and so forth to try to understand how this will come out? Basically, the question being, should we -- setting aside the issue of pronouns and so forth, kind of a very unique set of circumstances, on more brass tacks, one would expect some very narrow ruling on something that the court hasn't dealt with before quite so directly. At least, that's my understanding.

 

Casey Mattox:  Right. Yeah, I think where that process really comes in -- the principal place where it comes in is on the free exercise claim, the court noting—I guess, on the free speech claim, too—the court noting the diversions from what the process was supposed to be, which created opportunities for the school to be able to make individualized judgements, which raises problems under the free exercise jurisprudence if the school is able to insert those individualized judgements on whether a religious accommodation is going to be acceptable or not. And there's a lot of discussion to be able to make that call.

 

      I think that's one aspect of the internal process and the way it matters. But at this point in the case, I think the internal process has essentially wrapped up, so it's not as if there is anything else that could happen within the school to help resolve this that would play out going forward. The school began the process, went through its internal process, reached a final determination, and then placed letter in file, pursuant to that process. And it's the placing of the letter in the file that becomes the basis for the litigation.

 

      So I'm not sure if it will have -- if there's any kind of -- anything more to watch on that going forward, other than I think as you look at the process here, it's probably a good reminder that when you set out a process, and then have challenges along the way with following that process, as is often the case with internal processes where no one wants to address the constitutional questions or the accommodation questions that arise.

 

      I've seen this in other cases like this where usually, even in the government context, that lower-level government employees want to determine the facts and apply the facts, and they don't want to address what are the First Amendment arguments in this case. And I think that was part of the -- at least at this point, is part of the problem for the school, simply the refusal of people in this process to assess those academic freedom or religious liberty arguments as they apply, thinking of it as a more ministerial kind of investigation and application of their policy.

 

      Hopefully, that at least partially answers your question.

 

Caller 3:  No, it certainly does. And as a quick follow-up, the different thresholds of these internal processes is not necessarily something we should be looking toward then at any point in time. It's a lot more with regards to the final result as a package.

 

Casey Mattox:  I think that's right, except for the -- I think that's the basis for the lawsuit, but that internal process can end up creating some of the legal issues that are important to that final result. Where the decision maker has not appropriately considered certain factors, that's going to raise questions about hostility. Where they made a determination on one theory and then changed that at the end, then, potentially, that raises questions about that. Does that help to demonstrate hostility under the Free Exercise Clause if the process changed, but nevertheless, same result, or the theory changed, but with the same result only at the very end.

 

      So I think it can be relevant. But at this point, I think if the case goes on, it will be mostly focused on the result is letter in file.

 

Caller 3:  Perfect. Thank you.

 

Nick Marr:  So taking no questions right now, the floor's open. We've got about six minutes left. I'll hand the floor back to you if you want to offer any closing remarks. I'll let you know if we have a question that pops up.

 

Casey Mattox:  I think that's basically it on my end if we don't have any other questions. So I think this will be an interesting case to follow. I don't know of other cases that are at a similar posture at this point to be tracked. And as I mentioned before, I think the only other thing I would say is it's -- you have faculty members on one side of this case weighing in for Professor Meriwether, individual faculty members, around a hundred or so.

 

 I'm always interested in these cases by the degree to which, if you took the facts out of this case, if we knew nothing about this case, you knew this was a faculty member being sanctioned for something that he refused to say in classroom, you would expect, perhaps, a different lineup of amici. And I think that's just an interesting aspect to the way these cases tend to play out.

 

Nick Marr:  Okay, great. Well, thanks so much for your coverage. On behalf of The Federalist Society, I want to thank you, Casey, for the benefit of your valuable time and expertise this afternoon. I think we'll close out a couple of minutes early.      

 

Thanks to our audience for calling in, for your great questions. As a reminder, we welcome your feedback on these programs and others by emailing [email protected]. Also, check your emails on our website for announcements about upcoming Teleforum calls like this one and Zoom events and other things. So we hope to see you there. Until next time, we are adjourned.

     

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.