Merriwether v. Trustees of Shawnee State University

Summary

Shawnee State University, a public university in Ohio, maintains both a “Non-Discrimination/Sexual Harassment Policy” and a “Reporting & Investigating Sexual Assault, Sexual Misconduct & Other Forms of Discrimination” policy. The non-discrimination policy states that it “serves to ensure that there are University structures and processes in place that prohibit discrimination against individuals because of . . . gender identity.” The Reporting Policy states that the it “serves to implement the investigation and complaint provisions of [the Non-Discrimination/Sexual Harassment Policy] and to ensure that all discrimination complaints received by the University are reviewed and responded to promptly and in a fair and equitable manner.” The Reporting Policy further defines “Sex and Gender Based Discrimination” to include “negative or adverse treatment based on . . . gender identity . . . which denies or limits the individual’s ability to obtain the benefits of Shawnee State’s programs or activities.” Gender identity is defined in this in the policy to mean “a person’s innermost concept of self as male or female or neither – how individuals perceive themselves and what they call themselves.” In August 2016, the president of the faculty union made staff aware that they would be subject to disciplinary action if they refused to call students by their preferred gender pronouns.

Nicholas Meriwether was a tenured professor at Shawnee State University. Meriwether was a practicing evangelical Christian, who believed that gender was an immutable characteristic that could not be changed after conception. In 2016, after he became aware that he could face disciplinary action for refusing to refer to students by their preferred pronoun, Meriwether contacted Roberta Milliken, the Dean of the College of Arts and Sciences, to confirm that he would face discipline if he refused to abide by the policy because of his sincerely held religious beliefs. Milliken informed him that he must use pronouns that reflect a student’s gender-identity, and that the University maintained a non-discrimination policy that included gender identity.

In January 2018, Meriwether began to teach a class entitle “Political Philosophy.” While lecturing Meriwether regularly called on students using Mr. and Ms., followed by their last name. On January 9, 2018, during the first Political Philosophy class, Meriwether responded to a question from an unidentified student saying “Yes, sir.” After class the student approached Meriwether and told him that she identified as female and wanted Meriwether to refer to her using female pronouns. Meriwether stated that he was not going to comply with the student’s demands and that he was “not sure students can dictate how professors must refer to them.” The student allegedly became belligerent and told Meriwether that she was going to get him fired if he did not refer to her with her preferred pronouns. The student reportedly met with Douglas Shoemaker, a Deputy Title IX coordinator at the University. While the student did not file an official Title IX complaint, she threatened to do so if Meriwether did not alter his behavior. Shoemaker passed the student’s concerns onto Dean Milliken, who then met with Meriwether and requested that he eliminate the use of pronouns in his classroom and instead refer to all students just by their last names. Meriwether proposed an alternate solution where he continued to use gendered pronouns to refer to everyone except the complaining student, whom he would refer to using her last name.

On January 25, 2018, Milliken told Meriwether that the student was dissatisfied with his solution as it represented disparate treatment between herself and the other students in Meriwether’s class. Milliken then informed Meriwether that if he refused to comply with the student’s demands he would be in violation of the University’s Non-Discrimination Policy. Meriwether was then told by the union that if he continued to refuse to identify the student by her preferred pronoun he could be suspended or terminated, and on February 13, 2018, Milliken sent Meriwether formal notice that he needed to alter his behavior or the University would conduct an investigation. On March 12, 2018, Milken sent an email to Meriwether that stated “Every student needs to be treated the same in all of your classes. In other words, the policy seeks to ensure what is done for one student is done for all to avoid issues of discrimination. This regards names, pronoun usage, and most any other matter.”

Following an investigation, the University’s Title IX coordinators concluded that Meriwether’s refusal to change his behavior and his disparate treatment of the student had created a hostile environment in the classroom. Milliken issued a report recommending that a formal written warning be placed in Meriwether’s file. On June 14, 2018, Jeffrey Bauer, the University’s Provost and Vice-President of Academic Affairs, adopted Milliken’s recommendation and placed an official warning letter in Meriwether’s file.

On November 5, 2018, Meriwether filed a § 1983 action against various University officials and the Board of Trustees alleging various violations of the First and Fourteenth Amendments. Specifically, Meriwether alleged that University’s Non-Discrimination Policy as it relates to gender identity was facially unconstitutional. Meriwether further alleged that the University retaliated against him for protected speech, participated in content and viewpoint discrimination, attempted to compel his speech, interfered with his free exercise of religion, violated his rights “to be free from unconstitutional conditions,” violated his due process and equal protection rights, violated various provisions of the State Constitution of Ohio, and breached his contract. The unidentified student at the center of this controversy and a group called Sexuality and Gender Acceptance’s (SAGA), a  student group at Shawnee State which advocates to protect the LGBTQ community, filed a motion to join the suit as defendants. On May 9, 2019, the District Court for the Southern District of Ohio, Western Division, granted the unidentified student’s and SAGA’s motion, finding that the University officials had failed to demonstrate that they would adequately represent their interests in the litigation. On February 12, 2020, the District Court granted the defendants’ motion to dismiss Meriwether’s complaint, concluding that Meriwether had failed to state a claim upon which relief could be granted.

Update – April 22, 2022

Meriwether appealed the US District Courts ruling to the US Court of Appeals for the Sixth Circuit.  In March, 2021, the Sixth Circuit reversed the District Court’s free-speech and free-exercise holdings and vacated the dismissal of state-law claims.  In April, 2021, Meriwether and the University settled the lawsuit.  As part of that settlement, the university agreed that Meriwether has the right to choose when to use, or avoid using, titles or pronouns when referring to or addressing students., including if a student requests pronouns that “conflict with his or her biological sex.”  Additionally, the University agreed to pay $400,000 in damages and Meriwether’s attorneys’ fees, as well as rescinding the written warning it issued Meriwether in June 2018.