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Two recent federal court decisions give guidance to public universities on the interplay of free speech, academic freedom, free exercise of religion, and diversity and inclusion initiatives. The two cases have great significance for colleges and universities on how they should interpret and apply their own codes of conduct. The cases also may signal future legal claims against both public and private schools and employers if diversity and inclusion policies and trainings are challenged by students and employees.
In these two cases, the Sixth Circuit Court of Appeals, and the U.S. District Court for the Western District of Virginia both denied motions to dismiss in opinions allowing claims to proceed against the two universities. The courts were very skeptical of the manner and method of the alleged disciplinary process and strongly suggested that, if the facts alleged were true, both institutions could face significant liability. Both cases are at the pleading stage, where allegations made by the student and faculty member are taken as true for purposes of surviving a motion to dismiss.
In the Sixth Circuit’s decision in Meriwether, Judge Amul Thapar authored an opinion reversing the district court’s grant of Shawnee State University’s motion to dismiss the First Amendment Free Speech and Free Exercise Clause claims brought by a professor who refused to comply with the institution’s policy on pronoun usage. The university expected its faculty members to refer to students using each student’s preferred pronouns reflecting each student’s self-identified gender identity. Professor Meriwether refused to comply with that policy because being compelled in his use of pronouns effectively compelled him to falsely assert belief in a philosophical and religious worldview that he does not hold.
In Bhattacharya, United States District Judge Norman Moon denied the University of Virginia School of Medicine’s motion to dismiss the First Amendment free speech and retaliation claims of a medical student who alleges he was disciplined for questioning instead of agreeing with the university’s diversity and inclusion presentation on “microaggressions.” The medical student was reprimanded and told to undergo psychological counseling under the auspices of the institution’s professionalism code after an exchange at a lecture where the medical student challenged the speaker’s presentation on the topic of microaggressions.
The universities contended that they were not punishing students or faculty on the basis of viewpoint or content of the student or professor’s speech, but were instead simply enforcing codes of conduct designed to promote and ensure respectful and inclusive treatment of all community members. However, the Sixth Circuit and Judge Moon rejected those contentions, and instead focused on the core constitutional protections afforded to the student and the professor, and particularly in the higher educational setting. As Judge Thapar wrote in Meriwether, “Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides.” The Meriwether and Bhattacharya opinions illustrate why picking sides – or at least, punishing those who choose the other side – in debates over matters of public concern, poses legal risks for institutions.
In Meriwether, the court agreed with Professor Meriwether’s contention that the university’s application of its gender-identity pronoun policy was (1) not simply “ministerial” because it touched directly upon matters of significant public debate and concern, and (2) not viewpoint-neutral, because officials exhibited hostility to the professor’s religious beliefs, refused Professor Meriwether’s attempts to compromise in abiding by the policy, and utilized an investigation process riddled with irregularities. Similarly, in Bhattacharya, the court found that the student’s questions and comments challenging the presentation on “microaggressions” was protected speech that was neither inappropriate, disruptive, nor offensive, and the student raised a plausible inference of non-neutrality. The court also allowed the student’s retaliation claim to proceed, reasoning that the subsequent disciplinary actions imposed by the school were actionable adverse actions because a “student would be reluctant to express his views if he knew that his school would reprimand, suspend, or ban him from campus for doing so…”
Both decisions soundly rejected the universities’ attempt to justify punishing speech and expressive conduct as necessary to comply with non-discrimination laws or codes of professionalism. Both decisions point out that simply disagreeing or expressing a contrary opinion cannot readily be deemed discriminatory or unprofessional conduct, even though some conduct or speech, of course, falls outside First Amendment protection and can thus be legitimately prohibited under non-discrimination policies or codes of conduct. By way of example, the court in Bhattacharya pointed out that, if student Bhattacharya had used profanity, ad hominem slurs, or threats against others, his speech might not warrant protection as a matter of law.
But where such misconduct is absent, these federal court decisions reinforce that educational institutions need to be thoughtful, consistent, and neutral in applying their codes of student and faculty conduct, and must do so in a manner that provides sufficient “breathing room” for exercise of each individual’s constitutional rights to free speech, academic freedom, and free exercise of religion. Otherwise, these cases provide disciplined students and professors (and their attorneys) a court-approved roadmap to assert First Amendment claims for disciplinary actions against educational institutions and also for personal liability against university officials engaging in such conduct. (In Bhattacharya, for instance, the court denied qualified immunity to the individual university official defendants, at least at the motion to dismiss stage.)
These two decisions also could be harbingers of future claims against private schools, as well as private employers, over a host of policies based on diversity and inclusion initiatives, as courts and government agencies grapple with the extent to which such policies themselves may violate constitutional equal protection or civil rights laws that prohibit discrimination on the basis of race, ethnicity, national origin, and sex. Currently, for example, the Supreme Court is considering whether to grant cert in a case involving Harvard’s alleged discriminatory admission policies, in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (Petition for Certiori pending, Docket No. 20-1199). Other policies that similarly stem from institutional desire to foster diversity and inclusion – such as mandated compositions of corporate boards, award of contracts based on immutable characteristics, hiring initiatives that utilize sex and race-based quotas, and diversity training programs that impute to individuals alleged privileges based on race, sex, or other protected characteristics – also likely continue to generate legal and administrative challenges.
No matter how well-intentioned, it seems probable that federal and state constitutional provisions and civil rights laws will be sources of challenges to such policies and practices in the future. With that in mind, employers and educational institutions will need to consider how policies and training aimed at creating diverse and inclusive workforces and educational communities can be implemented in a manner that mitigates the increasing risk of claims under anti-discrimination laws and constitutional provisions.
For more information about this topic, please contact Candice Jackson.