Misunderstanding Meriwether

October 1, 2023

Meriwether v. Hartop is widely seen as one of the most important academic freedom and transgender rights cases of recent years.  Whether praising it as a victory for free speech or condemning it as a threat to educational equality, commentators across the political spectrum have agreed on one thing:  the U.S. Court of Appeals for the Sixth Circuit did something big when it held that professors at public universities have a First Amendment right to misgender their students in class.  But contrary to popular belief, Meriwether held no such thing.  In fact, the Sixth Circuit could not have held what nearly everyone believes it did, given the case’s procedural posture.  Meriwether has been misunderstood, and this Article aims to put a halt to the false narrative that has emerged around Meriwether before its consequences continue to spread.

Whereas previous work has explained why Meriwether’s holding is wrong, this Article delves into the complicated intersection of civil procedure and government employee speech claims to show why Meriwether’s holding is different, and far less important, than its foes and friends alike seem to think.  In doing so, the Article also shows how a false legal narrative can develop, spreading from an opinion that encourages the mistake, to advocates and press who eagerly report it, to commentators, legislators, and courts each with reasons of their own for inflating the opinion’s importance, eroding gender identity protections along the way.  This Article, finally, situates the widespread misunderstanding of Meriwether alongside other precedential mistakes and offers insight into how they might be counteracted before further distorting the law and threatening important equality rights.

October 2023

No. 1