#sixth circuit

OSHA’s Next Steps with the Vaccine or Test Rule

On Tuesday, January 25, the U.S. Occupational Safety and Health Administration (OSHA) announced the withdrawal of the “Emergency Temporary Standard” (ETS) that would have required large private employers of 100 or more employees to implement a vaccine or test policy. This announcement came after the U.S. Supreme Court stayed enforcement of the ETS on January 13, 2022 pending a decision from the…

The incident that precipitated this suit occurred in January 2018, when Shawnee State University philosophy professor Nicholas Meriwether responded to a male student’s question during a Socratic dialogue in his political philosophy class by saying, “Yes, sir.”  

After class at the school in Portsmouth, Ohio, the student approached Meriwether, stated that he was transgender, and demanded that the professor refer to him as a woman, with feminine titles and pronouns.

Instead, Meriwether offered to use the student’s last name, or any other name of the student’s choosing, but politely declined to use the transgender student’s pronouns. The student became belligerent and promised to get Meriwether fired. The student then filed a complaint with the university, which launched a formal investigation through the university’s Title IX office.

Meriwether again offered various compromises in an attempt to protect his rights of conscience while being respectful to the transgender student, but the university rejected any arrangement other than the use of preferred pronouns or the elimination of sex-based pronouns altogether (a virtual impossibility in a scholastic setting).

When Meriwether refused, the university formally charged him with a violation of Title IX, claiming “he [had] effectively created a hostile environment” for the student. The university placed a written warning in Meriwether’s personnel file and threatened “further corrective actions” unless he articulated the university’s groupthink.

Two years prior, in 2016, Meriwether had received a faculty-wide email from Shawnee State leadership, directing all faculty to refer to students by their preferred pronouns.

At that time, Meriwether, a devout Christian, had approached his department chair, Jennifer Pauley, with concerns about the policy. Pauley was not only dismissive of Meriwether’s concerns, she was patently hostile.

Knowing Meriwether had successfully taught courses on Christian thought for decades, Pauley claimed Christians are “primarily motivated out of fear” and “should be banned from teaching courses regarding that religion.” In her view, even the “presence of religion in higher education is counterproductive.”

Meriwether was told that even if a professor had moral or religious objections to the use of preferred pronouns, the policy would still apply. . . .

U.S. District Judge Susan Dlott threw out Meriwether’s lawsuit on Feb. 12, 2020, and among other things, held that a professor’s speech in the classroom is never protected by the First Amendment. Meriwether appealed to the 6th Circuit.

In Meriwether v. Hartop et al., an impatient panel for the 6th Circuit wasted no time with perfunctory legalese or institutional pandering. It cut right to the chase in its frustration with Shawnee State’s stamping out of debate and open dialogue vis-a-vis its malignant speech policy.

The opinion, which was written by Judge Amul Thapar and joined by Judge Joan Larsen and Senior Judge David McKeague, begins:

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. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment.

The district court dismissed the professor’s free-speech and free-exercise claims. We see things differently and reverse.

The court went on to clarify that the Supreme Court has recognized that the government may not compel a speaker to affirm a belief with which the speaker disagrees. It added that courts have recognized that the free speech clause of the Constitution applies at public universities and that “professors do not shed their constitutional rights to freedom of speech or expression at the [university] gate.”

Thapar, the first South Asian federal judge in American history and the son of self-made immigrants from India, seemed hard-pressed in containing his displeasure at the university’s looseness with long-standing judicial principles. It’s clear he doesn’t take kindly to Shawnee State’s loutish attempts at conformity.  

In relaying a dizzying body of precedent, Thapar stressed that the court has rejected as “totally unpersuasive” the argument that “teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction.”

Simply put, the judge wrote, professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship, because the need for free exchange of ideas in the college classroom is unlike that of other workplace settings.

In a critical discussion on the use of pronouns themselves, Thapar wrote:

[T]itles and pronouns carry a message. The university recognizes that and wants its professors to use pronouns to communicate a message: People can have a gender identity inconsistent with their sex at birth. But Meriwether does not agree with that message, and he does not want to communicate it to his students.

That’s not a matter of classroom management; that’s a matter of academic speech … Never before have titles and pronouns been scrutinized as closely as they are today for their power to validate—or invalidate—someone’s perceived sex or gender identity. Meriwether took a side in that debate. Through his continued refusal to address Doe as a woman, he advanced a viewpoint on gender identity …

Shawnee State allegedly flouted [a] core principle of the First Amendment. Taking the allegations as true, we hold that the university violated Meriwether’s free-speech rights.

The court’s opinion in Meriwether v. Hartop is long overdue comfort to those who refuse to bend the knee on leftist groupthink—the kind that forces a subjective and manipulable view of one person’s self to become a defining reality for everyone else. It is a stake in the ground on behalf of religious dissenters and academic freedom.

Sixth Circuit Erases Chalking of Parked Cars

It’s not often that a dispute over parking tickets ends up in federal court. But that’s exactly what happened this week in Taylor v. City of Saginaw – a case that has already drawn the attention of the national media.

Taylor involved a challenge to “a common parking enforcement practice known as ‘chalking,’ whereby City parking enforcement officers use chalk to mark the tires of parked vehicles…

The U.S. Court of Appeals for the Sixth Circuit has ruled in favor of a fired transgender funeral director.

Aimee Stephens said she was unlawfully fired by Michigan-based R.G. & G.R Harris Funeral Homes after disclosing she was transitioning from male to female and dressed as a woman.

In a decision yesterday, the U.S. Court of Appeals for the Sixth Circuit held that businesses cannot discriminate against employees for identifying as transgender and that Harris Funeral Homes had discriminated against Stephens by firing her in 2013.  

For Immediate Release April 26, 2017

For More Information, Contact: Brett Schuster, Communications Manager [email protected], 202-775-9555

WASHINGTON — Today, Judge Amul R. Thapar sat before the Senate Judiciary Committee during a hearing on his nomination to serve on the U.S. Court of Appeals for the Sixth Circuit.

“Today’s hearings demonstrate that Judge Amul Thapar is a highly qualified nominee,” said Cyndie M. Chang, National Asian Pacific American Bar Association (NAPABA) president. “He is an experienced and fair jurist who was confirmed by the Senate by voice vote to his current position on the bench. Judge Thapar is a trailblazer and role model for many in our community, as the first South Asian American to serve on the federal bench.”

“The National Asian Pacific American Bar Association extends its strong support for Judge Thapar’s nomination to the U.S. Court of Appeals for the Sixth Circuit. NAPABA urges the Senate to hold a prompt vote and swiftly confirm Judge Thapar.”

Judge Amul Thapar was confirmed by the Senate by voice vote to the U.S. District Court for the Eastern District of Kentucky in 2007. NAPABA supported his nomination to the bench at that time. He has a long record of public service, including serving as U.S. Attorney for the Eastern District of Kentucky. If confirmed, Judge Thapar would become the second South Asian American to serve as a federal Article III appellate judge and the fifth currently active Asian Pacific American federal Article III appellate judge.

NAPABA provided testimony in support of Judge Thapar, stating: “Judge Thapar would make an immediate contribution as a federal circuit court judge. His qualifications, integrity, intellect, and commitment to the justice system are unquestionable. He brings dedicated talent and understanding of the issues before the court, and a willingness to tackle complex issues, that is inspiring… [T]he swift confirmation of Judge Thapar is important to NAPABA and the Asian Pacific American community.”

Read NAPABA’s statement on the nomination of Judge Thapar here. Read NAPABA’s testimony here.

For more information, the media may contact Brett Schuster, NAPABA communications manager, at 202-775-9555 or [email protected].

The National Asian Pacific American Bar Association (NAPABA) is the national association of Asian Pacific American (APA) attorneys, judges, law professors, and law students. NAPABA represents the interests of over 50,000 attorneys and over 75 national, state, and local bar associations. Its members include solo practitioners, large firm lawyers, corporate counsel, legal services and non-profit attorneys, and lawyers serving at all levels of government. NAPABA engages in legislative and policy advocacy, promotes APA political leadership and political appointments, and builds coalitions within the legal profession and the community at large. NAPABA also serves as a resource for government agencies, members of Congress, and public service organizations about APAs in the legal profession, civil rights, and diversity in the courts.

NAPABA continues to be a leader in addressing civil rights issues confronting Asian Pacific American communities. Through its national network of committees and affiliates, NAPABA provides a strong voice for increased diversity of the federal and state judiciaries, advocates for equal opportunity in the workplace, works to eliminate hate crimes and anti-immigrant sentiment, and promotes the professional development of people of color in the legal profession.

To learn more about NAPABA, visit www.napaba.org, like us on Facebook, and follow us on Twitter (@NAPABA).