Tuesday, September 15, 2020

Free speech, Meriwether, and Menkel-Meadow

Andrew Koppelman

Two cases of administrative punishment for the use of language in the classroom have been in the news.  One involves a professor’s insistence on treating a transgender student worse than others.  The other involves a professor who spoke the N word in a law school class about hate speech.  The free speech claim is silly in the first of these cases, quite strong in the second.

Prof. Nicholas Meriwether of Shawnee State University, Ohio, refused to address a transgender student by the student’s preferred pronouns.  Instead, while addressing all other students as “Mr.” or “Ms.,” he referred to the student by last name only.  When disciplined for discrimination, he sued the school, claiming that his free speech rights were violated.  He lost and is appealing the decision.  In an essay at The Hill, I explained why his legal claim is meritless.

He has now published a response to me, arguing that he is being wrongly forced to say what he does not believe.  He does not regard this student as female and should not be required to address the student with female pronouns.  Teachers “should not be compelled to say and teach things they don’t believe or risk being fired or disciplined. And everyone should be free to stand thoughtfully for the truth.”

I agree with that.  Since faculties tend to be disproportionately on the political left, it is particularly urgent to protect the speech of those with conservative views.  Those who oppose gender change should be permitted to say so.  (See Deirdre McCloskey’s smart defense of J.K. Rowling’s free speech rights.) It is also urgent, and not only within the university, to lower the temperature of the conflict between gay rights and religious liberty.

Meriwether however fails to mention a crucial fact.  As I reported in my earlier piece, his administration “suggested that he could refer to all students by first or last names only, without using gendered pronouns for any of them.  That would have treated all students equally, and it would not have required him to say anything he did not believe.  Why would he not do that?”

He writes that “I should have a certain amount of freedom, within my own classroom, to determine the exact language I do and do not use when teaching my class.”  His reasons for insisting on addressing students as “Mr.” or “Miss” are specified in his district court complaint:  “Dr. Meriwether refers to students in this fashion to foster an atmosphere of seriousness and mutual respect that is befitting the college classroom.  Dr. Meriwether believes that this formal manner of addressing students helps them view the academic enterprise as a serious, weighty endeavor.” 

I responded:  “Of course, the seriousness and weightiness of honorifics were not available to the transgender student.  Meriwether is insisting on his right to single out the transgender student and treat her worse than all other students.”

Meriwether now writes:  “the school’s problem with me—and, for that matter, the student’s problem with me—is not really that I treated him [sic] differently, but that I did not. I treated this student exactly like I treat others, when in fact he [sic] wanted to be treated differently.”  But impact matters, and schools can take impact into account when they regulate how students are treated.  Meriwether’s notion of equality would be satisfied by a classroom that happens to have a doorway too narrow for a wheelchair.

I wrote:  “Meriwether is essentially alleging that his academic freedom, or perhaps his freedom from compelled speech (he offers lots of different free speech formulations) mean that he has a First Amendment right to say anything he wants in his classroom. . . . If these claims are accepted, then teachers have an unlimited right to verbally mistreat students.”  His response to me makes clear that I understood his claim perfectly.  His understanding of free speech is so broad that he would be free to address his students using racist epithets.  If a teacher is entitled to declare in class his sincere belief that his transgender student is a man, then a teacher must be likewise entitled to declare in class his sincere belief that his African-American student is a being of an inferior order with no rights that whites are bound to respect.

I have been writing about issues of academic freedom in the classroom, and in particular about the use of the N word.  So I’ll clarify how the Meriwether case is different from a couple of other cases that have recently become prominent.  The most important issue is notice.  If a school forbids addressing transgender students by the pronoun of their previous gender, it must tell professors of this requirement and give them the opportunity to comply.  Shawnee State did that.

Part of what is pernicious about the mistreatment of Michael McConnell, who read from a racist text in order to expose shameful aspects of American history, is that he was condemned (by a group of law review editors from another school!) for crossing a line that no one knew existed when he spoke the word in his class. 

The treatment of Carrie Menkel-Meadow is far worse.  McConnell was publicly denounced in print by a group of students.  Their statement was foolish and reprehensible, but they have their own free speech rights, and no administrative consequences followed. 

Menkel-Meadow teaches at the University of California, Irvine School of Law.  Like McConnell, she spoke the word while teaching about racist speech.  In response to student objections, the school’s dean, Song Richardson, barred Menkel-Meadow from teaching first year classes.

There is room for debate about how classes should be conducted, and specifically about the use of the N word.  I agree with Eugene Volokh and Randall Kennedy that an absolute bar, which would extend to written materials as well as utterances in the classroom, would be a pernicious dumbing down of legal education.  I’m happy to have that conversation about appropriate pedagogy.  My own judgment today is that the mention of the word, coming out of a white person's mouth, has nasty resonances that many students find deeply alienating. That's why I will not orally articulate the word in class again.  McConnell has reached the same conclusion. Teaching is an exercise in rhetoric, and rhetoric always needs to be adapted to the concerns and sensitivities of its audience.  I don’t think that an absolute bar would be an appropriate rule, but that would be an appropriate subject for debate among the faculty.  Any such rule would of course be enforced prospectively. 

Which brings us to the line that Dean Richardson has crossed.  She is punishing a faculty member under an ex post facto rule that, even now, has decidedly fuzzy boundaries.  She said in a statement to Above the Law:  “It is time to eliminate the use of the 'N' word in legal pedagogy." Volokh writes:  “This would mean that words that respected, thoughtful, judges and lawyers of all ideological stripes routinely mention in opinions, briefs, and oral arguments, and which lawyers routinely see in case documents and hear in witness and client interviews, would be forbidden in the law school classroom.”  It might also mean that professors could be punished for assigning readings that contain the word.  It is not clear to me how one could teach certain major free speech cases, such as Brandenburg v. Ohio, in a way that would shield students from seeing the word in print.  If the N word is absolutely to be expelled from legal pedagogy, than some volumes of the U.S. Reports will have to be removed from law libraries.

The Irvine administration’s action is certain to create an atmosphere of fear at the school, in which no one can tell what the boundaries of permissible speech are.  This is fundamentally at odds with the purposes of education.  It is a massive betrayal of administrative responsibility.

Meriwether has no such complaint.  He was put on clear notice of where the line was.  That line makes sense for the same reason that it is already clear that a professor may not directly address a student by using the N word.  He was also offered an accommodation that would not have required him to say anything he did not believe.  There was no vagueness, and no chilling of the substance of what he taught.

The Irvine decision should be reversed, by Dean Richardson or, if necessary, the university administration.  Universities’ improved sensitivity to the vulnerabilities of minority students is valuable, but it becomes toxic when it is the basis of administrative sanctions for violation of ex post facto rules.

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