John Jay said we should read and study the U.S. Constitution so we will recognize when our rights are violated and be prepared to defend and assert them. Today I review yet another case where a lack of knowledge not only of the people, but of the lawyers and judges, are leading to another infringement of our rights and another example that we have no clue how to defend and assert them.
Today I am reviewing the case of Meriwether v. Trustees of Shawnee State University. The case stems from an event that took place in January 2018. Dr. Meriwether, a philosophy professor at Shawnee State University, refers to all his students either as “sir” or “ma’am”, or by a title like Mr. or Miss and their last name. During a January class, Dr. Meriwether responded to a student’s question with “Yes, sir.” After the class, the student approached Dr. Meriwether and demanded the professor refer to him with feminine titles and pronouns. When Dr. Meriwether did not agree, the student became belligerent, referred to Dr. Meriwether in vulgar terms, and threatened to get him fired.
The student then filed a complaint with the university, which launched a formal investigation. Dr. Meriwether offered to call the students by only their first or last name, but university officials rejected the offer. Instead, the university charged Dr. Meriwether with effectively creating a hostile environment for the student, placed a warning in his personnel file, and threatened “further corrective actions” unless he articulated the university’s ideological message. This led the Alliance Defending Freedom to file suit on Dr. Meriwether’s behalf in the U.S. District Court for the Southern District of Ohio.
The Opinion
This case involves the complicated overlap of issues concerning transgender identity, civility in public discourse, academic freedom, and the First Amendment rights to free speech and free exercise of religion.
U.S. District Court Opinion, Meriwether v. Trustees of Shawnee State Univ.
Rarely have I read so much confusion and misinformation in a single sentence, although coming from a federal court I am not surprised. The only reason any court is dealing with a “complicated overlap of issues” is because they ignore the most basic tenant of rights. For a right to be legitimately exercised, it cannot infringe on the rights of another. I suppose, when some people look at this case they can see issues of identity, civility, academic freedom, and the First Amendment when they ignore the actual language of the amendment.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,
U.S. Constitution, Amendment I
I don’t know how many times I’ve said it, but it apparently needs repeating: The First Amendment specifically states, “Congress shall make no law…”. This infringement on Dr. Meriwether’s rights was not instituted by Congress, or by any federal agency acting under the authority of legislation created by Congress. So this cannot be an infringement on the First Amendment of the U.S. Constitution. This is a violation of the Constitution of the State of Ohio, Article I, Section 11.
Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press.
Constitution of the State of Ohio, Article I, Section 11.
Now that I’ve gotten that out of the way, let’s look at the real problems with this case.
Freedom of Speech
I wrote and article and recorded a podcast episode explaining rights, and I would recommend you read or watch one of them if anything I’m about to say is confusing. As I said, for a right to be legitimately exercised, it cannot infringe on the rights of another. Civil public discourse cannot be a right, because it requires people be coerced into saying what other people find civil. Academic freedom cannot be an unalienable right, because the owners of the school have the right to set standards for the courses taught there. Does a person have the right to identify however they want? Yes, until they use that claimed “right” to infringe on the rights of another, which is exactly what happened here.
Dr. Meriwether has the right, in this case protected by the Ohio Constitution, to speak, write, and publish freely on any subject he wishes. And the student has the right to request that Dr. Meriwether address him in the manner he wishes. But the student has no more right to force Dr. Meriwether to address him a certain way than Dr. Meriwether has the right to require the student identify by his actual sex. In fact, once the student began berating the professor, he abdicated his right to speak freely on the subject by violating the rights of another. The student did have the right to complain to the school and to petition the government for a redress of grievance. However, the Ohio Constitution only protects the right to petition the General Assembly and not just government representatives. It’s what happened next that is truly dangerous.
Shawnee State University, as its name implies, is a state university, which means it’s a public school. Created in 1986 by an act of the state legislature, the school falls under all of the same restrictions of any other state entity. So when the Ohio Constitution states that “no law shall be passed to restrain or abridge the liberty of speech”, that includes the university’s nondiscrimination policies. By mandating certain types of speech, the school has abridged the liberty of speech for those who believe differently.
Sadly, this violation of Dr. Meriwether’s rights was shot down when Judge Susan J. Dlott of the U.S. District Court for the Southern District of Ohio noted, correctly I believe, that his speech was not protected under the First Amendment of the U.S. Constitution. That is a point I have stated previously. The suit also claimed that the school violated his right to freely exercise religion protected under the Ohio Constitution. Article I, Section 7 does protect freedom of religion, but it is very specific about how that’s to be done.
Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the General Assembly to pass suitable laws, to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction.
Constitution of the State of Ohio, Article I, Section 7
Shawnee State’s non-discrimination policy was not created by the General Assembly, so it would be a difficult case to win. If the suit had focused on the violation of Dr. Meriwether’s freedom of speech protected by the Ohio Constitution rather the the U.S. one, there might have been a better chance of the court finding in favor of the plaintiff. The one violation of the federal constitution the suit did have a leg to stand on, in my opinion, was the violation of the Equal Protection Clause.
No State shall … deny to any person within its jurisdiction the equal protection of the laws.
U.S. Constitution, Amendment XIV, Section 1
By protecting the student’s “right” to be addressed in the manner he prefers, the university must deny the right of Dr. Meriwether to address him in the manner he prefers. In other words, the university was not protecting the rights of both parties equally. Again, this is a much weaker argument than protecting Dr. Meriwether’s free speech rights, but that chance was lost when his legal team decided to claim protection from the U.S. Constitution in federal court for something it specifically does not protect.
Conclusion
I believe the court was mostly right when they found that what happened to Dr. Meriwether was not a violation of the U.S. Constitution. I do disagree with the court on the Equal Protection Clause issue, but in my opinion that was a weaker point and should have been saved for appeal should the courts in the State of Ohio fail in their duty to protect the legitimate rights of all their citizens. For me, the saddest point was the opportunity lost to claim a violation of the Constitution of the State of Ohio’s Article I, Section 11 protection of free speech. By requiring an employee to express an idea he disagrees with, this state agency has violated his right to speak freely. By not accepting the compromise of allowing Dr. Meriwether to refer to the student without a title or pronoun, the university has shown malice to the beliefs, conscience, and free speech, not only of the professor, but anyone who will not bow down to their ideological beliefs.
Perhaps, if Dr. Meriwether and his legal team had spent more time studying the Constitutions of both the United State and the State of Ohio, this case could have been dealt with quickly and painlessly. If the agents of the State of Ohio in were more focused on finding justice for all rather than promoting a politicized agenda, this problem would not have had to be made public. Even better, if we all spent more time trying to protect the rights of others instead of trying to get our way, this whole event might not have happened in the first place.
