10 Speech in the Public-Sector Workplace 10 Speech in the Public-Sector Workplace
Speech at work in some ways overlaps with concerns about employee privacy. Some issues, for example, like employer efforts to control workers' appearance, may implicate both speech and privacy. And employers' concerns may overlap--including issues of profitability and safety. But speech rights involve employees' abilities to define and express their views publicly--and associate with others who do the same. These activities may compromise the messages that employers seek to send, or interfere with the management of an employer's operation.
In employment law, the state action requirement creates a clear line between government and private-sector employees. Government employees may invoke a limited claim based on the Free Speech Clause of the First Amendment, whereas private sector employees must rely on a tattered patchwork of common law and contract protections. First, we will consider the rules that apply to government employees.
10.1 Garcetti v. Ceballos 10.1 Garcetti v. Ceballos
GARCETTI et al. v. CEBALLOS
No. 04-473.
Argued October 12, 2005
Reargued March 21, 2006
Decided May 30, 2006
*412 Cindy S. Lee argued and reargued the cause for petitioners. With her on the briefs were Jin S. Choi and Domine F. Meyer.
Dan Himmelfarb argued, and Deputy Solicitor General Kneedler reargued, the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Clement, Assistant Attorney General Keisler, Mr. Himmelfarb, William Kanter, Michael E. Robinson, Mark A. Robbins, Steven E. Abow, and Robin M. Richardson.
Bonnie I. Robin-Vergeer argued and reargued the cause for respondent. With her on the brief were Scott L. Nelson and Brian Wolfman. *
delivered the opinion of the Court.
It is well settled that “a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.” Connick v. Myers, 461 U. S. 138, 142 (1983). The question presented by the instant case is whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee’s official duties.
I
Respondent Richard Ceballos has been employed since 1989 as a deputy district attorney for the Los Angeles County District Attorney’s Office. During the period relevant to this case, Ceballos was a calendar deputy in the office’s Pomona branch, and in this capacity he exercised certain supervisory responsibilities over other lawyers. In February 2000, a defense attorney contacted Ceballos about a pending criminal case. The defense attorney said there were inaccuracies in an affidavit used to obtain a critical search warrant. The attorney informed Ceballos that he *414had filed a motion to traverse, or challenge, the warrant, but he also wanted Ceballos to review the case. According to Ceballos, it was not unusual for defense attorneys to ask calendar deputies to investigate aspects of pending cases.
After examining the affidavit and visiting the location it described, Ceballos determined the affidavit contained serious misrepresentations. The affidavit called a long driveway what Ceballos thought should have been referred to as a separate roadway. Ceballos also questioned the affidavit’s statement that tire tracks led from a stripped-down truck to the premises covered by the warrant. His doubts arose from his conclusion that the roadway’s composition in some places made it difficult or impossible to leave visible tire tracks.
Ceballos spoke on the telephone to the warrant affiant, a deputy sheriff from the Los Angeles County Sheriff’s Department, but he did not receive a satisfactory explanation for the perceived inaccuracies. He relayed his findings to his supervisors, petitioners Carol Najera and Frank Sundstedt, and followed up by preparing a disposition-memorandum. The memo explained Ceballos’ concerns and recommended dismissal of the case. On March 2,2000, Ceballos submitted the memo to Sundstedt for his review. A few days later, Ceballos presented Sundstedt with another memo, this one describing a second telephone conversation between Ceballos and the warrant affiant.
Based on Ceballos’ statements, a meeting was held to discuss the affidavit. Attendees included Ceballos, Sundstedt, and Najera, as well as the warrant affiant and other employees from the sheriff’s department. The meeting allegedly became heated, with one lieutenant sharply criticizing Ceballos for his handling of the case.
Despite Ceballos’ concerns, Sundstedt decided to proceed with the prosecution, pending disposition of the defense motion to traverse. The trial court held a hearing on the motion. Ceballos was called by the defense and recounted *415his observations about the affidavit, but the trial court rejected the challenge to the warrant.
Ceballos claims that in the aftermath of these events he was subjected to a series of retaliatory employment actions. The actions included reassignment from his calendar deputy position to a trial deputy position, transfer to another courthouse, and denial of a promotion. Ceballos initiated an employment grievance, but the grievance was denied based on a finding that he had not suffered any retaliation. Unsatisfied, Ceballos sued in the United States District Court for the Central District of California, asserting, as relevant here, a claim under Rev. Stat. § 1979, 42 U. S. C. § 1983. He alleged petitioners violated the First and Fourteenth Amendments by retaliating against him based on his memo of March 2.
Petitioners responded that no retaliatory actions were taken against Ceballos and that all the actions of which he complained were explained by legitimate reasons such as staffing needs. They further contended that, in any event, Ceballos’ memo was not protected speech under the First Amendment. Petitioners moved for summary judgment, and the District Court granted their motion. Noting that Ceballos wrote his memo pursuant to his employment duties, the court concluded he was not entitled to First Amendment protection for the memo’s contents. It held in the alternative that even if Ceballos’ speech was constitutionally protected, petitioners had qualified immunity because the rights Ceballos asserted were not clearly established.
The Court of Appeals for the Ninth Circuit reversed, holding that “Ceballos’s allegations of wrongdoing in the memorandum constitute protected speech under the First Amendment.” 361 F. 3d 1168, 1173 (2004). In reaching its conclusion the court looked to the First Amendment analysis set forth in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968), and Connick, supra. Connick instructs courts to begin by considering *416whether the expressions in question were made by the speaker “as a citizen upon matters of public concern.” See id., at 146-147. The Court of Appeals determined that Ceballos’ memo, which recited what he thought to be governmental misconduct, was “inherently a matter of public concern.” 361 F. 3d, at 1174. The court did not, however, consider whether the speech was made in Ceballos’ capacity as a citizen. Rather, it relied on Circuit precedent rejecting the idea that “a public employee’s speech is deprived of First Amendment protection whenever those views are expressed, to government workers or others, pursuant to an employment responsibility.” Id., at 1174-1175 (citing cases including Roth v. Veteran’s Admin. of Govt. of United States, 856 F. 2d 1401 (CA9 1988)).
Having concluded that Ceballos’ memo satisfied the public-concern requirement, the Court of Appeals proceeded to balance Ceballos’ interest in his speech against his supervisors’ interest in responding to it. See Pickering, supra, at 568. The court struck the balance in Ceballos’ favor, noting that petitioners “failed even to suggest disruption or inefficiency in the workings of the District Attorney’s Office” as a result of the memo. See 361 F. 3d, at 1180. The court further concluded that Ceballos’ First Amendment rights were clearly established and that petitioners’ actions were not objectively reasonable. See id., at 1181-1182.
Judge O’Scannlain specially concurred. Agreeing that the panel’s decision was compelled by Circuit precedent, he nevertheless concluded Circuit law should be revisited and overruled. See id., at 1185. Judge O’Scannlain emphasized the distinction “between speech offered by a public employee acting as an employee carrying out his or her ordinary job duties and that spoken by an employee acting as a citizen expressing his or her personal views on disputed matters of public import.” Id., at 1187. In his view, “when public employees speak in the course of carrying out their routine, required employment obligations, they have no personal in*417terest in the content of that speech that gives rise to a First Amendment right.” Id., at 1189.
We granted certiorari, 543 U. S. 1186 (2005), and we now reverse.
II
As the Court’s decisions have noted, for many years “the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment — including those which restricted the exercise of constitutional rights.” Connick, 461 U. S., at 143. That dogma has been qualified in important respects. See id., at 144-145. The Court has made clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern. See, e. g., Pickering, supra, at 568; Connick, supra, at 147; Rankin v. McPherson, 483 U. S. 378, 384 (1987); United States v. Treasury Employees, 513 U. S. 454, 466 (1995).
Pickering provides a useful starting point in explaining the Court’s doctrine. There the relevant speech was a teacher’s letter to a local newspaper addressing issues including the funding policies of his school board. 391 U. S., at 566. “The problem in any case,” the Court stated, “is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id., at 568. The Court found the teacher’s speech “neither [was] shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.” Id., at 572-573 (footnote omitted). Thus, the Court concluded that “the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly *418greater than its interest in limiting a similar contribution by any member of the general public.” Id., at 573.
Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. See id., at 568. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. See Connick, supra, at 147. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. See Pickering, 391 U. S., at 568. This consideration reflects the importance of the relationship between the speaker’s expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.
To be sure, conducting these inquiries sometimes has proved difficult. This is the necessary product of “the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors ... to furnish grounds for dismissal.” Id., at 569. The Court’s overarching objectives, though, are evident.
When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom. See, e. g., Waters v. Churchill, 511 U. S. 661, 671 (1994) (plurality opinion) (“[T]he government as employer indeed has far broader powers than does the government as sovereign”). Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services. Cf. Connick, *419 supra, at 143 (“[Government offices could not function if every employment decision became a constitutional matter”). Public employees, moreover, often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions.
At the same time, the Court has recognized that a citizen who works for the government is nonetheless a citizen. The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens. See Perry v. Sindermann, 408 U. S. 593, 597 (1972). So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. See, e.g., Connick, supra, at 147 (“Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government”).
The Court’s employee-speech jurisprudence protects, of course, the constitutional rights of public employees. Yet the First Amendment interests at stake extend beyond the individual speaker. The Court has acknowledged the importance of promoting the public’s interest in receiving the well-informed views of government employees engaging in civic discussion. Pickering again provides an instructive example. The Court characterized its holding as rejecting the attempt of school administrators to “limi[t] teachers’ opportunities to contribute to public debate.” 391 U. S., at 573. It also noted that teachers are “the members of a community most likely to have informed and definite opinions” about school expenditures. Id., at 572. The Court’s approach acknowledged the necessity for informed, vibrant dialogue in a democratic society. It suggested, in addition, that widespread costs may arise when dialogue is repressed. The Court’s more recent cases have expressed similar con*420cerns. See, e. g., San Diego v. Roe, 543 U. S. 77, 82 (2004) (per curiam) (“Were [public employees] not able to speak on [the operation of their employers], the community would be deprived of informed opinions on important public issues. The interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it” (citation omitted)); cf. Treasury Employees, 513 U. S., at 470 (“The large-scale disincentive to Government employees’ expression also imposes a significant burden on the public’s right to read and hear what the employees would otherwise have written and said”).
The Court’s decisions, then, have sought both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions. See, e. g., Rankin, 483 U. S., at 384 (recognizing “the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment”). Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to “constitutionalize the employee grievance.” Connick, 461 U. S., at 154.
Ill
With these principles in mind we turn to the instant case. Respondent Ceballos believed the affidavit used to obtain a search warrant contained serious misrepresentations. He conveyed his opinion and recommendation in a memo to his supervisor. That Ceballos expressed his views inside his office, rather than publicly, is not dispositive. Employees in some cases may receive First Amendment protection for expressions made at work. See, e. g., Givhan v. Western Line Consol. School Dist., 439 U. S. 410, 414 (1979). Many citizens do much of their talking inside their respective workplaces, and it would not serve the goal of treating public *421employees like “any member of the general public,” Pickering, 391 U. S., at 573, to hold that all speech within the office is automatically exposed to restriction.
The memo concerned the subject matter of Ceballos’ employment, but this, too, is nondispositive. The First Amendment protects some expressions related to the speaker’s job. See, e. g., ibid.; Givhan, supra, at 414. As the Court noted in Pickering: “Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.” 391 U. S., at 572. The same is true of many other categories of public employees.
The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy. See Brief for Respondent 4 (“Ceballos does not dispute that he prepared the memorandum ‘pursuant to his duties as a prosecutor’”). That consideration — the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case— distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.
Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do. It is immaterial whether he experienced some personal gratification from writing the memo; his First Amendment rights do not depend on his job satisfaction. The significánt point is that the memo was written pursuant to Ceballos’ official duties. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe *422any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created. Cf. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833 (1995) (“[W]hen the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes”)- Contrast, for example, the expressions made by the speaker in Pickering, whose letter to the newspaper had no official significance and bore similarities to letters submitted by numerous citizens every day.
Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings. In the same way he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee. The fact that his duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance.
This result is consistent with our precedents’ attention to the potential societal value of employee speech. See supra, at 419-420. Refusing to recognize First Amendment claims based on government employees’ work product does not prevent them from participating in public debate. The employees retain the prospect of constitutional protection for their contributions to the civic discourse. This prospect of protection, however, does not invest them with a right to perform their jobs however they see fit.
Our holding likewise is supported by the emphasis of our precedents on affording government employers sufficient discretion to manage their operations. Employers have heightened interests in controlling speech made by an employee in his or her professional capacity. Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure *423that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission. Ceballos’ memo is illustrative. It demanded the attention of his supervisors and led to a heated meeting with employees from the sheriff’s department. If Ceballos’ superiors thought his memo was inflammatory or misguided, they had the authority to take proper corrective action.
Ceballos’ proposed contrary rule, adopted by the Court of Appeals, would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business. This displacement of managerial discretion by judicial supervision finds no support in our precedents. When an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences. When, however, the employee is simply performing his or her job duties, there is no warrant for a similar degree of scrutiny. To hold otherwise would be to demand permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.
The Court of Appeals based its holding in part on what it perceived as a doctrinal anomaly. The court suggested it would be inconsistent to compel public employers to tolerate certain employee speech made publicly but not speech made pursuant to an employee’s assigned duties. See 361 F. 3d, at 1176. This objection misconceives the theoretical underpinnings of our decisions. Employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government. The same goes for writing a letter to a local newspaper, see Pickering, supra, or discussing politics with a co-worker, see Rankin, *424483 U. S. 378. When a public employee speaks pursuant to employment responsibilities, however, there is no relevant analogue to speech by citizens who are not government employees.
The Court of Appeals’ concern also is unfounded as a practical matter. The perceived anomaly, it should be noted, is limited in scope: It relates only to the expressions an employee makes pursuant to his or her official responsibilities, not to statements or complaints (such as those at issue in cases like Pickering and Connick) that are made outside the duties of employment. If, moreover, a government employer is troubled by the perceived anomaly, it has the means at hand to avoid it. A public employer that wishes to encourage its employees to voice concerns privately retains the option of instituting internal policies and procedures that are receptive to employee criticism. Giving employees an internal forum for their speech will discourage them from concluding that the safest avenue of expression is to state their views in public.
Proper application of our precedents thus leads to the conclusion that the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities. Because Ceballos’ memo falls into this category, his allegation of unconstitutional retaliation must fail.
Two final points warrant mentioning. First, as indicated above, the parties in this case do not dispute that Ceballos wrote his disposition memo pursuant to his employment duties. We thus have no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate. We reject, however, the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions. See post, at 431, n. 2 (Souter, J., dissenting). The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is *425expected to perforin, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes.
Second, Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. See post, at 438-439. There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.
IV
Exposing governmental inefficiency and misconduct is a matter of considerable significance. As the Court noted in Connick, public employers should, “as a matter of good judgment,” be “receptive to constructive criticism offered by their employees.” 461 U. S., at 149. The dictates of sound judgment are reinforced by the powerful network of legislative enactments — such as whistle-blower protection laws and labor codes — available to those who seek to expose wrongdoing. See, e. g., 5 U. S. C. § 2302(b)(8); Cal. Govt. Code Ann. §8547.8 (West 2005); Cal. Lab. Code Ann. §1102.5 (West Supp. 2006). Cases involving government attorneys implicate additional safeguards in the form of, for example, rules of conduct and constitutional obligations apart from the First Amendment. See, e.g., Cal. Rule Prof. Conduct 5-110 (2005) (“A member in government service shall not institute or cause to be instituted criminal charges when the member knows or should know that the charges are not supported by probable cause”); Brady v. Maryland, 373 U. S. 83 (1963). These imperatives, as well as obligations arising from any *426other applicable constitutional provisions and mandates of the criminal and civil laws, protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions.
We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties. Our precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.
The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
dissenting.
The proper answer to the question “whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee's official duties,” ante, at 413, is “Sometimes,” not “Never.” Of course a supervisor may take corrective action when such speech is “inflammatory or misguided,” ante, at 423. But what if it is just unwelcome speech because it reveals facts that the supervisor would rather not have anyone else discover?*
*427As Justice Souter explains, public employees are still citizens while they are in the office. The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment is quite wrong. Over a quarter of a century has passed since then-justice Rehnquist, writing for a unanimous Court, rejected “the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly.” Givhan v. Western Line Consol. School Dist., 439 U. S. 410, 414 (1979). We had no difficulty recognizing that the First Amendment applied when Bessie Givhan, an English teacher, raised concerns about the school’s racist employment practices to the principal. See id., at 413-416. Our silence as to whether or not her speech was made pursuant to her job duties demonstrates that the point was immaterial. That is equally true today, for it is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description. Moreover, it seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.
While today’s novel conclusion to the contrary may not be “inflammatory,” for the reasons stated in Justice Souter’s dissenting opinion it is surely “misguided.”
with whom
Justice Stevens and Justice Ginsburg join, dissenting.
The Court holds that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Ante, at 421. I respectfully dissent. *428I agree with the majority that a government employer has substantial interests in effectuating its chosen policy and objectives, and in demanding competence, honesty, and judgment from employees who speak for it in doing their work. But I would hold that private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government’s stake in the efficient implementation of policy, and when they do public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection.
I
Open speech by a private citizen on a matter of public importance lies at the heart of expression subject to protection by the First Amendment. See, e. g., Schenck v. Pro-Choice Network of Western N. Y., 519 U. S. 357, 377 (1997). At the other extreme, a statement by a government employee complaining about nothing beyond treatment under personnel rules raises no greater claim to constitutional protection against retaliatory response than the remarks of a private employee. See Connick v. Myers, 461 U. S. 138, 147 (1983). In between these points lies a public employee’s speech unwelcome to the government but on a significant public issue. Such an employee speaking as a citizen, that is, with a citizen’s interest, is protected from reprisal unless the statements are too damaging to the government’s capacity to conduct public business to be justified by any individual or public benefit thought to flow from the statements. Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968). Entitlement to protection is thus not absolute.
This significant, albeit qualified, protection of public employees who irritate the government is understood to flow from the First Amendment, in part, because a government paycheck does nothing to eliminate the value to an individual of speaking on public matters, and there is no good *429reason for categorically discounting a speaker’s interest in commenting on a matter of public concern just because the government employs him. Still, the First Amendment safeguard rests on something more, being the value to the public of receiving the opinions and information that a public employee may disclose. “Government employees are often in the best position to know what ails the agencies for which they work.” Waters v. Churchill, 511 U. S. 661, 674 (1994).
The reason that protection of employee speech is qualified is that it can distract co-workers and supervisors from their tasks at hand and thwart the implementation of legitimate policy, the risks of which grow greater the closer the employee’s speech gets to commenting on his own workplace and responsibilities. It is one thing for an office clerk to say there is waste in government and quite another to charge that his own department pays full-time salaries to part-time workers. Even so, we have regarded eligibility for protection by Pickering balancing as the proper approach when an employee speaks critically about the administration of his own government employer. In Givhan v. Western Line Consol. School Dist., 439 U. S. 410 (1979), we followed Pickering when a teacher was fired for complaining to a superior about the racial composition of the school’s administrative, cafeteria, and library staffs, 439 U. S., at 413-414, and the same point was clear in Madison Joint School Dist. No. 8 v. Wisconsin Employment Relations Comm’n, 429 U. S. 167 (1976). That case was decided, in part, with reference to the Pickering framework, and the Court there held that a schoolteacher speaking out on behalf of himself and others at a public school board meeting could not be penalized for criticizing pending collective-bargaining negotiations affecting professional employment. Madison noted that the teacher “addressed the school board not merely as one of its employees but also as a concerned citizen, seeking to express his views on an important decision of his government.” 429 *430U. S., at 174-175. In each case, the Court realized that a public employee can wear a citizen’s hat when speaking on subjects closely tied to the employee’s own job, and Givhan stands for the same conclusion even when the speech is not addressed to the public at large. Cf. Pegram v. Herdrich, 530 U. S. 211, 225 (2000) (recognizing that, factually, a trustee under the Employee Retirement Income Security Act of 1974 can both act as ERISA fiduciary and act on behalf of the employer).
The difference between a case like Givhan and this one is that the subject of Ceballos’s speech fell within the scope of his job responsibilities, whereas choosing personnel was not what the teacher was hired to do. The effect of the majority’s constitutional line between these two cases, then, is that a Givhan schoolteacher is protected when complaining to the principal about hiring policy, but a school personnel officer would not be if he protested that the principal disapproved of hiring minority job applicants. This is an odd place to draw a distinction,1 and while necessary judicial line-drawing sometimes looks arbitrary, any distinction obliges a court to justify its choice. Here, there is no adequate justification for the majority’s line categorically denying Pickering protection to any speech uttered “pursuant to ... official duties,” ante, at 421.
As all agree, the qualified speech protection embodied in Pickering balancing resolves the tension between individual and public interests in the speech, on the one hand, and the government’s interest in operating efficiently without distraction or embarrassment by talkative or headline-grabbing employees. The need for a balance hardly disappears when an employee speaks on matters his job requires him to address; rather, it seems obvious that the individual and public *431value of such speech is no less, and may well be greater, when the employee speaks pursuant to his duties in addressing a subject he knows intimately for the very reason that it falls within his duties.2
As for the importance of such speech to the individual, it stands to reason that a citizen may well place a very high value on a right to speak on the public issues he decides to make the subject of his work day after day. Would anyone doubt that a school principal evaluating the performance of teachers for promotion or pay adjustment retains a citizen’s interest in addressing the quality of teaching in the schools? (Still, the majority indicates he could be fired without First Amendment recourse for fair but unfavorable comment when the teacher under review is the superintendent’s daughter.) Would anyone deny that a prosecutor like Richard Ceballos may claim the interest of any citizen in speaking out against a rogue law enforcement officer, simply because his job requires him to express a judgment about the officer’s performance? (But the majority says the First Amendment *432gives Ceballos no protection, even if his judgment in this case was sound and appropriately expressed.)
Indeed, the very idea of categorically separating the citizen’s interest from the employee’s interest ignores the fact that the ranks of public service include those who share the poet’s “object... to unite [m]y avocation and my vocation”;3 these citizen servants are the ones whose civic interest rises highest when they speak pursuant to their duties, and these are exactly the ones government employers most want to attract.4 There is no question that public employees speaking on matters they are obliged to address would generally *433place a high value on a right to speak, as any responsible citizen would.
Nor is there any reason to raise the counterintuitive question whether the public interest in hearing informed employees evaporates when they speak as required on some subject at the core of their jobs. Last Term, we recalled the public value that the Pickering Court perceived in the speech of public employees as a class: “Underlying the decision in Pickering is the recognition that public employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers, operations which are of substantial concern to the public. Were they not able to speak on these matters, the community would be deprived of informed opinions on important public issues. The interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it.” San Diego v. Roe, 543 U. S. 77, 82 (2004) (per curiam) (citation omitted). This is not a whit less true when an employee’s job duties require him to speak about such things: when, for example, a public auditor speaks on his discovery of embezzlement of public funds, when a building inspector makes an obligatory report of an attempt to bribe him, or when a law enforcement officer expressly balks at a superior’s order to violate constitutional rights he is sworn to protect. (The majority, however, places all these speakers beyond the reach of First Amendment protection against retaliation.)
Nothing, then, accountable on the individual and public side of the Pickering balance changes when an employee speaks “pursuant” to public duties. On the side of the government employer, however, something is different, and to this extent, I agree with the majority of the Court. The majority is rightly concerned that the employee who speaks out on matters subject to comment in doing his own work has the greater leverage to create office uproars and fracture the government’s authority to set policy to be carried out *434coherently through the ranks. “Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission.” Ante, at 422-423. Up to a point, then, the majority makes good points: government needs civility in the workplace, consistency in policy, and honesty and competence in public service.
But why do the majority’s concerns, which we all share, require categorical exclusion of First Amendment protection against any official retaliation for things said on the job? Is it not possible to respect the unchallenged individual and public interests in the speech through a Pickering balance without drawing the strange line I mentioned before, supra, at 430? This is, to be sure, a matter of judgment, but the judgment has to account for the undoubted value of speech to those, and by those, whose specific public job responsibilities bring them face to face with wrongdoing and incompetence in government, who refuse to avert their eyes and shut their mouths. And it has to account for the need actually to disrupt government if its officials are corrupt or dangerously incompetent. See n. 4, supra. It is thus no adequate justification for the suppression of potentially valuable information simply to recognize that the government has a huge interest in managing its employees and preventing the occasionally irresponsible one from turning his job into a bully pulpit. Even there, the lesson of Pickering (and the object of most constitutional adjudication) is still to the point: when constitutionally significant interests clash, resist the demand for winner-take-all; try to make adjustments that serve all of the values at stake.
Two reasons in particular make me think an adjustment using the basic Pickering balancing scheme is perfectly feasible here. First, the extent of the government’s legitimate authority over subjects of speech required by a public job *435can be recognized in advance by setting in effect a minimum heft for comments with any claim to outweigh it. Thus, the risks to the government are great enough for us to hold from the outset that an employee commenting on subjects in the course of duties should not prevail on balance unless he speaks on a matter of unusual importance and satisfies high standards of responsibility in the way he does it. The examples I have already given indicate the eligible subject matter, and it is fair to say that only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in an employee’s favor. If promulgation of this standard should fail to discourage meritless actions premised on 42 U. S. C. § 1983 (or Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971)) before they get filed, the standard itself would sift them out at the summary-judgment stage.5
My second reason for adapting Pickering to the circumstances at hand is the experience in Circuits that have recognized claims like Ceballos’s here. First Amendment protection less circumscribed than what I would recognize has been available in the Ninth Circuit for over 17 years, and neither there nor in other Circuits that accept claims like this one has there been a debilitating flood of litigation. There has indeed been some: as represented by Ceballos’s lawyer at oral argument, each year over the last five years, approximately 70 cases in the different Courts of Appeals and approximately 100 in the various District Courts. Tr. of Oral Arg. 58-59. But even these figures reflect a readiness to litigate that might well have been cooled by my view about *436the importance required before Pickering treatment is in order.
For that matter, the majority’s position comes with no guarantee against factbound litigation over whether a public employee’s statements were made “pursuant to . . . official duties,” ante, at 421. In fact, the majority invites such litigation by describing the enquiry as a “practical one,” ante, at 424, apparently based on the totality of employment circumstances.6 See n. 2, supra. Are prosecutors’ discretionary statements about cases addressed to the press on the courthouse steps made “pursuant to their official duties”? Are government nuclear scientists’ complaints to their supervisors about a colleague’s improper handling of radioactive materials made “pursuant” to duties?
II
The majority seeks support in two lines of argument extraneous to Pickering doctrine. The one turns on a fallacious reading of cases on government speech, the other on a mistaken assessment of protection available under whistle-blower statutes.
A
The majority accepts the fallacy propounded by the county petitioners and the Federal Government as amicus that any statement made within the scope of public employment is (or should be treated as) the government’s own speech, see ante, at 421-422, and should thus be differentiated as a matter of law from the personal statements the First Amendment protects, see Broadrick v. Oklahoma, 413 U. S. 601, 610 (1973). The majority invokes the interpretation set out in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995), of Rust v. Sullivan, 500 U. S. 173 (1991), which *437held there was no infringement of the speech rights of Title X funds recipients and their staffs when the Government forbade any on-the-job counseling in favor of abortion as a method of family planning, id., at 192-200. We have read Rust to mean that “when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes.” Rosenberger, supra, at 833.
The key to understanding the difference between this case and Rust lies in the terms of the respective employees’ jobs and, in particular, the extent to which those terms require espousal of a substantive position prescribed by the government in advance. Some public employees are hired to “promote a particular policy” by broadcasting a particular' message set by the government, but not everyone working for the government, after all, is hired to speak from a government manifesto. See Legal Services Corporation v. Velazquez, 531 U. S. 533, 542 (2001). There is no claim or indication that Ceballos was hired to perform such a speaking assignment. He was paid to enforce the law by constitutional action: to exercise the county government’s prosecutorial power by acting honestly, competently, and constitutionally. The only sense in which his position apparently required him to hew to a substantive message was at the relatively abstract point of favoring respect for law and its evenhanded enforcement, subjects that are not at the level of controversy in this case and were not in Rust. Unlike the doctors in Rust, Ceballos was not paid to advance one specific policy among those legitimately available, defined by a specific message or limited by a particular message forbidden. The county government’s interest in his speech cannot therefore be equated with the terms of a specific, prescribed, or forbidden substantive position comparable to the Federal Government’s interest in Rust, and Rust is no authority for the notion that government may exercise plenary control over every comment made by a public employee in doing his job.
*438It is not, of course, that the district attorney lacked interest of a high order in what Ceballos might say. If his speech undercut effective, lawful prosecution, there would have been every reason to rein him in or fire him; a statement that created needless tension among law enforcement agencies would be a fair subject of concern, and the same would be true of inaccurate statements or false ones made in the course of doing his work. But these interests on the government’s part are entirely distinct from any claim that Ceballos’s speech was government speech with a preset or proscribed content as exemplified in Rust. Nor did the county petitioners here even make such a claim in their answer to Ceballos’s complaint, see n. 13, infra.
The fallacy of the majority’s reliance on Rosenberger’s understanding of Rust doctrine, moreover, portends a bloated notion of controllable government speech going well beyond the circumstances of this case. Consider the breadth of the new formulation:
“Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.” Ante, at 421-422.
This ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write “pursuant to ... official duties.” See Grutter v. Bollinger, 539 U. S. 306, 329 (2003) (“We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional *439tradition”); Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 603 (1967) (“Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. ‘The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools’ ” (quoting Shelton v. Tucker, 364 U. S. 479, 487 (1960))); Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957) (a governmental enquiry into the contents of a scholar’s lectures at a state university “unquestionably was an invasion of [his] liberties in the areas of academic freedom and political expression — areas in which government should be extremely reticent to tread”).
B
The majority’s second argument for its disputed limitation of Pickering doctrine is that the First Amendment has little or no work to do here owing to an assertedly comprehensive complement of state and national statutes protecting government whistle-blowers from vindictive bosses. See ante, at 425-426. But even if I close my eyes to the tenet that “‘[t]he applicability of a provision of the Constitution has never depended on the vagaries of state or federal law,’” Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 680 (1996), the majority’s counsel to rest easy fails on its own terms.7
*440To begin with, speech addressing official wrongdoing may well fall outside protected whistle-blowing, defined in the classic sense of exposing an official’s fault to a third party or to the public; the teacher in Givhan, for example, who raised the issue of unconstitutional hiring bias, would not have qualified as that sort of whistle-blower, for she was fired after a private conversation with the school principal. In any event, the combined variants of statutory whistle-blower definitions and protections add up to a patchwork, not a showing that worries may be remitted to legislatures for relief. See D. Westman & N. Modesitt, Whistleblowing: Law of Retaliatory Discharge 67-75,281-307 (2d ed. 2004). Some state statutes protect all government workers, including the employees of municipalities and other subdivisions;8 others stop at state employees.9 Some limit protection to employees who tell their bosses before they speak out;10 others forbid bosses from imposing any requirement to warn.11 As for the federal Whistleblower Protection Act of 1989, 5 *441U. S. C. § 1213 et seq. (2000 ed. and Supp. III), current case law requires an employee complaining of retaliation to show that “ ‘a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee [could] reasonably conclude that the actions of the government evidence gross mismanagement,’” White v. Department of Air Force, 391 F. 3d 1377, 1381 (CA Fed. 2004) (quoting Lachance v. White, 174 F. 3d 1378, 1381 (CA Fed. 1999), cert. denied, 528 U. S. 1153 (2000)). And federal employees have been held to have no protection for disclosures made to immediate supervisors, see Willis v. Department of Agriculture, 141 F. 3d 1139, 1143 (CA Fed. 1998); Horton v. Department of Navy, 66 F. 3d 279, 282 (CA Fed. 1995), cert. denied, 516 U. S. 1176 (1996), or for statements of facts publicly known already, see Francisco v. Office of Personnel Management, 295 F. 3d 1310, 1314 (CA Fed. 2002). Most significantly, federal employees have been held to be unprotected for statements made in connection with normal employment duties, Huffman v. Office of Personnel Management, 263 F. 3d 1341, 1352 (CA Fed. 2001), the very speech that the majority says will be covered by “the powerful network of legislative enactments . . . available to those who seek to expose wrongdoing,” ante, at 425.12 My point is not to disparage particular statutes or speak here to the merits of interpretations by other federal courts, but merely to show the current understanding of statutory protection: individuals doing the same sorts of governmental jobs and saying the same sorts of things addressed to civic concerns will get different protection depending on the local, state, or federal jurisdictions that happened to employ them.
Ill
The Court remands because the Court of Appeals considered only the disposition memorandum and because Ceballos *442charges retaliation for some speech apparently outside the ambit of utterances “pursuant to their official duties.” When the Court of Appeals takes up this case once again, it should consider some of the following facts that escape emphasis in the majority opinion owing to its focus.13 Ceballos says he sought his position out of a personal commitment to perform civic work. After showing his superior, petitioner Frank Sundstedt, the disposition memorandum at issue in this case, Ceballos complied with Sundstedt’s direction to tone down some accusatory rhetoric out of concern that the memorandum would be unnecessarily incendiary when shown to the Sheriff’s Department. After meeting with members of that department, Ceballos told his immediate supervisor, petitioner Carol Najera, that he thought Brady v. Maryland, 373 U. S. 83 (1963), obliged him to give the defense his internal memorandum as exculpatory evidence. He says that Najera responded by ordering him to write a new memorandum containing nothing but the deputy sheriff’s statements, but that he balked at that. Instead, he proposed to turn over the existing memorandum with his own conclusions redacted as work product, and this is what he did. The issue over revealing his conclusions arose again in preparing for the suppression hearing. Ceballos maintains that Sundstedt ordered Najera, representing the prosecution, to give the trial judge a full picture of the circumstances, but that Najera told Ceballos he would suffer retaliation if he testified that the affidavit contained intentional fabrications. In any event, Ceballos’s testimony generally stopped short of his own conclusions. After the hearing, the trial judge denied the motion to suppress, explaining that he found grounds independent of the challenged material sufficient to show probable cause for the warrant.
*443Ceballos says that over the next six months his supervisors retaliated against him14 not only for his written reports, see ante, at 415, but also for his spoken statements to them and his hearing testimony in the pending criminal case. While an internal grievance filed by Ceballos challenging these actions-was pending, Ceballos spoke at a meeting of the Mexican-American Bar Association about misconduct of the Sheriff’s Department in the criminal case, the lack of any policy at the District Attorney’s Office for handling allegations of police misconduct, and the retaliatory acts he ascribed to his supervisors. Two days later, the office dismissed Ceballos’s grievance, a result he attributes in part to his bar association speech.
Ceballos’s action against petitioners under 42 U. S. C. § 1983 claims that the individuals retaliated against him for exercising his First Amendment rights in submitting the memorandum, discussing the matter with Najera and Sundstedt, testifying truthfully at the hearing, and speaking at the bar meeting.15 As I mentioned, the Court of Appeals *444saw no need to address the protection afforded to Ceballos’s statements other than the disposition memorandum, which it thought was protected under the Pickering test. Upon remand, it will be open to the Court of Appeals to consider the application of Pickering to any retaliation shown for other statements; not all of those statements would have been made pursuant to official duties in any obvious sense, and the claim relating to truthful testimony in court must surely be analyzed independently to protect the integrity of the judicial process.
dissenting.
This case asks whether the First Amendment protects public employees when they engage in speech that both (1) involves matters of public concern and (2) takes place in the ordinary course of performing the duties of a government job. I write separately to explain why I cannot fully accept either the Court’s or Justice Souter’s answer to the question presented.
I
I begin with what I believe is common ground:
(1) Because virtually all human interaction takes place through speech, the First Amendment cannot offer all speech the same degree of protection. Rather, judges must apply different protective presumptions in different contexts, scrutinizing government’s speech-related restrictions differently *445depending upon the general category of activity. Compare, e. g., Burson v. Freeman, 504 U. S. 191 (1992) (plurality opinion) (political speech), with Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557 (1980) (commercial speech), and Rust v. Sullivan, 500 U. S. 173 (1991) (government speech).
(2) Where the speech of government employees is at issue, the First Amendment offers protection only where the offer of protection itself will not unduly interfere with legitimate governmental interests, such as the interest in efficient administration. That is because the government, like any employer, must have adequate authority to direct the activities of its employees. That is also because efficient administration of legislatively authorized programs reflects the constitutional need effectively to implement the public’s democratically determined will.
(3) Consequently, where a government employee speaks “as an employee upon matters only of personal interest,” the First Amendment does not offer protection. Connick v. Myers, 461 U. S. 138, 147 (1983). Where the employee speaks “as a citizen ... upon matters of public concern,” the First Amendment offers protection but only where the speech survives a screening test. Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968). That test, called, in legal shorthand, “Pickering balancing,” requires a judge to “balance ... the interests” of the employee “in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Ibid. See also Connick, supra, at 142.
(4) Our prior cases do not decide what screening test a judge should apply in the circumstances before us, namely, when the government employee both speaks upon a matter of public concern and does so in the course of his ordinary duties as a government employee.
*446II
The majority answers the question by holding that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Ante, at 421. In a word, the majority says, “never.” That word, in my view, is too absolute.
Like the majority, I understand the need to “affor[d] government employers sufficient discretion to manage their operations.” Ante, at 422. And I agree that the Constitution does not seek to “displace]... managerial discretion by judicial supervision.” Ante, at 423. Nonetheless, there may well be circumstances with special demand for constitutional protection of the speech at issue, where governmental justifications may be limited, and where administrate standards seem readily available — to the point where the majority’s fears of department management by lawsuit are misplaced. In such an instance, I believe that courts should apply the Pickering standard, even though the government employee speaks upon matters of public concern in the course of his ordinary duties.
This is such a case. The respondent, a government lawyer, complained of retaliation, in part, on the basis of speech contained in his disposition memorandum that he says fell within the scope of his obligations under Brady v. Maryland, 373 U. S. 83 (1963). The facts present two special circumstances that together justify First Amendment review.
First, the speech at issue is professional speech — the speech of a lawyer. Such speech is subject to independent regulation by canons of the profession. Those canons provide an obligation to speak in certain instances. And where that is so, the government’s own interest in forbidding that speech is diminished. Cf. Legal Services Corporation v. Velazquez, 531 U. S. 533, 544 (2001) (“Restricting LSC [Legal Services Corporation] attorneys in advising their clients and *447in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys”). See also Polk County v. Dodson, 454 U. S. 312, 321 (1981) (“[A] public defender is not amenable to administrative direction in the same sense as other employees of the State”). See generally Post, Subsidized Speech, 106 Yale L. J. 151, 172 (1996) (“[Professionals must always qualify their loyalty and commitment to the vertical hierarchy of an organization by their horizontal commitment to general professional norms and standards”). The objective specificity and public availability of the profession’s canons also help to diminish the risk that the courts will improperly interfere with the government’s necessary authority to manage its work.
Second, the Constitution itself here imposes speech obligations upon the government’s professional employee. A prosecutor has a constitutional obligation to learn of, to preserve, and to communicate with the defense about exculpatory and impeachment evidence in the government’s possession. Kyles v. Whitley, 514 U. S. 419, 437 (1995); Brady, supra. So, for example, might a prison doctor have a similar constitutionally related professional obligation to communicate with superiors about seriously unsafe or unsanitary conditions in the cellblock. Cf. Farmer v. Brennan, 511 U. S. 825, 832 (1994). There may well be other examples.
Where professional and special constitutional obligations are both present, the need to protect the employee’s speech is augmented, the need for broad government authority to control that speech is likely diminished, and administrable standards are quite likely available. Hence, I would find that the Constitution mandates special protection of employee speech in such circumstances. Thus I would apply the Pickering balancing test here.
Ill
While I agree with much of Justice Soutee’s analysis, I believe that the constitutional standard he enunciates fails *448to give sufficient weight to the serious managerial and administrative concerns that the majority describes. The standard would instruct courts to apply Pickering balancing in all cases, but says that the government should prevail unless the employee (1) “speaks on a matter of unusual importance,” and (2) “satisfies high standards of responsibility in the way he does it.” Ante, at 435 (dissenting opinion). Justice Souter adds that “only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in an employee’s favor.” Ibid.
There are, however, far too many issues of public concern, even if defined as “matters of unusual importance,” for the screen to screen out very much. Government administration typically involves matters of public concern. Why else would government be involved? And “public issues,” indeed, matters of “unusual importance,” are often daily bread-and-butter concerns for the police, the intelligence agencies, the military, and many whose jobs involve protecting the public’s health, safety, and the environment. This aspect of Justice Souter’s “adjustment” of “the basic Pickering balancing scheme,” ante, at 434, is similar to the Court’s present insistence that speech be of “legitimate news interest” when the employee speaks only as a private citizen, see San Diego v. Roe, 543 U. S. 77, 83-84 (2004) (per curiam). It gives no extra weight to the government’s augmented need to direct speech that is an ordinary part of the employee’s job-related duties.
Moreover, the speech of vast numbers of public employees deals with wrongdoing, health, safety, and honesty: for example, police officers, firefighters, environmental protection agents, building inspectors, hospital workers, bank regulators, and so on. Indeed, this categorization could encompass speech by an employee performing almost any public function, except perhaps setting electricity rates. Nor do these *449categories bear any obvious relation to the constitutional importance of protecting the job-related speech at issue.
The underlying problem with this breadth of coverage is that the standard (despite predictions that the government is likely to prevail in the balance unless the speech concerns “official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety,” ante, at 435 (Souter, J., dissenting)) does not avoid the judicial need to undertake the balance in the first place. And this form of judicial activity — the ability of a dissatisfied employee to file a complaint, engage in discovery, and insist that the court undertake a balancing of interests — itself may interfere unreasonably with both the managerial function (the ability of the employer to control the way in which an employee performs his basic job) and with the use of other grievance-resolution mechanisms, such as arbitration, civil service review boards, and whistle-blower remedies, for which employees and employers may have bargained or which legislatures may have enacted.
At the same time, the list of categories substantially overlaps areas where the law already provides nonconstitutional protection through whistle-blower statutes and the like. See ante, at 425-426 (majority opinion); ante, at 439-441 (Souter, J., dissenting). That overlap diminishes the need for a constitutional forum and also means that adoption of the test would authorize Federal Constitution-based legal actions that threaten to upset the legislatively struck (or administratively struck) balance that those statutes (or administrative procedures) embody.
IV
I conclude that the First Amendment sometimes does authorize judicial actions based upon a government employee’s speech that both (1) involves a matter of public concern and also (2) takes place in the course of ordinary job-related du*450ties. But it does so only in the presence of augmented need for constitutional protection and diminished risk of undue judicial interference with governmental management of the public’s affairs. In my view, these conditions are met in this case and Pickering balancing is consequently appropriate.
With respect, I dissent.
10.2 Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021) 10.2 Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021)
THAPAR, Circuit Judge.
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.
I.
The district court decided this case on a motion to dismiss, so we construe the complaint in the light most favorable to the plaintiff. That means we must accept the complaint's factual allegations as true and draw all reasonable inferences in Meriwether's favor. Handy-Clay v. City of Memphis, 695 F.3d 531, 538 (6th Cir. 2012). Under this standard, we must reverse the district court's dismissal unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (quoting Guzman v. U.S. Dep't of Homeland Sec., 679 F.3d 425, 429 (6th Cir. 2012)).
A.
Nicholas Meriwether is a philosophy professor at Shawnee State University, a small public college in Portsmouth, Ohio. Shawnee State began awarding bachelor's degrees just thirty years ago. And for twenty-five of those years, Professor Meriwether has been a fixture at the school. He has served in the faculty senate, designed a bachelor's degree program in Philosophy and Religion, led study-abroad trips, and taught countless students in classes ranging from Ethics to the History of Christian Thought. Up until the incident that triggered this lawsuit, Meriwether had a spotless disciplinary record.
Professor Meriwether is also a devout Christian. He strives to live out his faith each day. And, like many people of faith, his religious convictions influence how he thinks about "human nature, marriage, gender, sexuality, morality, politics, and social issues." R. 34, Pg. ID 1469. Meriwether believes that "God created human beings as either male or female, that this sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual's feelings or desires." Id. He also believes that he cannot "affirm as true ideas and concepts that are not true." Id. Being faithful to his religion was never a problem at Shawnee State. But in 2016, things changed.
At the start of the school year, Shawnee State emailed the faculty informing them that they had to refer to students by their "preferred pronoun[s]." Id. at 1471-72. Meriwether asked university officials for more details about the new pronoun policy, and the officials confirmed that professors would be disciplined if they "refused to use a pronoun that reflects a student's self-asserted gender identity." Id. at 1472. What if a professor had moral or religious objections? That didn't matter: The policy applied "regardless of the professor's convictions or views on the subject." Id.
When Meriwether asked to see the revised policy, university officials pointed him to the school's existing policy prohibiting discrimination "because of ... gender identity." R. 34-1, Pg. ID 1509. That policy applies to all of the university's "employees, students, visitors, agents and volunteers"; it applies at both academic and 499*499 non-academic events; it applies on all university property (including classrooms, dorms, and athletic fields); and it sometimes applies off campus. R. 34-2, Pg. ID 1511-12.
Meriwether approached the chair of his department, Jennifer Pauley, to discuss his concerns about the newly announced rules. Pauley was derisive and scornful. Knowing that Meriwether had successfully taught courses on Christian thought for decades, she said that Christians are "primarily motivated out of fear" and should be "banned from teaching courses regarding that religion." R. 34, Pg. ID 1473. In her view, even the "presence of religion in higher education is counterproductive." Id.
Meriwether continued to teach students without incident until January 2018. On the first day of class, Meriwether was using the Socratic method to lead discussion in his course on Political Philosophy. When using that method, he addresses students as "Mr." or "Ms." He believes "this formal manner of addressing students helps them view the academic enterprise as a serious, weighty endeavor" and "foster[s] an atmosphere of seriousness and mutual respect." Id. at 1475. He "has found that addressing students in this fashion is an important pedagogical tool in all of his classes, but especially in Political Philosophy where he and [the] students discuss many of the most controversial issues of public concern." Id. In that first class, one of the students Meriwether called on was Doe. According to Meriwether, "no one ... would have assumed that [Doe] was female" based on Doe's outward appearances. Id. at 1474. Thus, Meriwether responded to a question from Doe by saying, "Yes, sir." Id. This was Meriwether's first time meeting Doe, and the university had not provided Meriwether with any information about Doe's sex or gender identity.
After class, Doe approached Meriwether and "demanded" that Meriwether "refer to [Doe] as a woman" and use "feminine titles and pronouns." Id. at 1475. This was the first time that Meriwether learned that Doe identified as a woman. So Meriwether paused before responding because his sincerely held religious beliefs prevented him from communicating messages about gender identity that he believes are false. He explained that he wasn't sure if he could comply with Doe's demands. Doe became hostile—circling around Meriwether at first, and then approaching him in a threatening manner: "I guess this means I can call you a cu—." Id. Doe promised that Meriwether would be fired if he did not give in to Doe's demands.
Meriwether reported the incident to senior university officials, including the Dean of Students and his department chair, Jennifer Pauley. University officials then informed their Title IX office of the incident. Officials from that office met with Doe and escalated Doe's complaint to Roberta Milliken, the Acting Dean of the College of Arts and Sciences.
Dean Milliken went to Meriwether's office the next day. She "advised" that he "eliminate all sex-based references from his expression"—no using "he" or "she," "him" or "her," "Mr." or "Ms.," and so on. Id. at 1476-77. Meriwether pointed out that eliminating pronouns altogether was next to impossible, especially when teaching. So he proposed a compromise: He would keep using pronouns to address most students in class but would refer to Doe using only Doe's last name. Dean Milliken accepted this compromise, apparently believing it followed the university's gender-identity policy.
Doe continued to attend and participate in Meriwether's class. But Doe remained dissatisfied and, two weeks into the semester, complained to university officials 500*500 again. So Dean Milliken paid Meriwether another visit. This time, she said that if Meriwether did not address Doe as a woman, he would be violating the university's policy.
Soon after, Meriwether accidentally referred to Doe using the title "Mr." before immediately correcting himself. Around this time, Doe again complained to the university's Title IX Coordinator and threatened to retain counsel if the university didn't take action. So Dean Milliken once again came to Meriwether's office. She reiterated her earlier demand and threatened disciplinary action if he did not comply.
Trying to find common ground, Meriwether asked whether the university's policy would allow him to use students' preferred pronouns but place a disclaimer in his syllabus "noting that he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity." R. 34, Pg. ID 1478. Dean Milliken rejected this option out of hand. She insisted that putting a disclaimer in the syllabus would itself violate the university's gender-identity policy.
During the rest of the semester, Meriwether called on Doe using Doe's last name, and "Doe displayed no anxiety, fear, or intimidation" while attending class. Id. at 1477-79. In fact, Doe excelled and participated as much or more than any other student in the course. At the end of the semester, Meriwether awarded Doe a "high grade." Id. at 1479. This grade reflected Doe's "very good work" and "frequent participation in class discussions." Id.
B.
As the semester proceeded, Meriwether continued to search for an accommodation of his personal and religious views that would satisfy the university. But Shawnee State was not willing to compromise. After Dean Milliken's final meeting with Meriwether, she sent him a formal letter reiterating her demand: Address Doe in the same manner "as other students who identify themselves as female." R. 34-9, Pg. ID 1702. The letter said that if Meriwether did not comply, "the University may conduct an investigation" and that he could be subject to "informal or formal disciplinary action." Id.
Then, just a few days later—and without waiting for a response from Meriwether—Milliken announced that she was "initiating a formal investigation." R. 34-10, Pg. ID 1703. She claimed that she was doing so because she received "another complaint from a student in [Meriwether's] class." Id. The complaint was again from Doe. When Meriwether again asked whether an accommodation might be possible given his sincerely held beliefs, Milliken shot him down. She said he had just two options: (1) stop using all sex-based pronouns in referring to students (a practical impossibility that would also alter the pedagogical environment in his classroom), or (2) refer to Doe as a female, even though doing so would violate Meriwether's religious beliefs.
Dean Milliken referred the matter to Shawnee State's Title IX office. Over the coming months, the university's Title IX staff conducted a less-than-thorough investigation. They interviewed just four witnesses—Meriwether, Doe, and two other transgender students. They did not ask Meriwether to recommend any potential witnesses. And aside from Doe and Meriwether themselves, none of the witnesses testified about a single interaction between the two.
Shawnee State's Title IX office concluded that "Meriwether's disparate treatment [of Doe] ha[d] created a hostile environment" 501*501 in violation of the university's non-discrimination policies. R. 34-13, Pg. ID 1719. Those policies prohibit "discrimination against any individual because of ... gender identity." R. 34-1, Pg. ID 1509. They define gender identity as a "person's innermost concept of self as male or female or both or neither." R. 34-2, Pg. ID 1522. And they define a hostile educational environment as "any situation in which there is harassing conduct that limits, interferes with or denies educational benefits or opportunities, from both a subjective (the complainant's) and an objective (reasonable person's) viewpoint." Id. at 1522-23. The Title IX report concluded that because Doe "perceives them self as a female," and because Meriwether has "refuse[d] to recognize" that identity by using female pronouns, Meriwether engaged in discrimination and "created a hostile environment." R. 34-13, Pg. ID 1719. The report did not mention Meriwether's request for an accommodation based on his sincerely held religious beliefs.
After the Title IX report issued, Dean Milliken informed Meriwether that she was bringing a "formal charge" against him under the faculty's collective bargaining agreement. R. 34-14, Pg. ID 1731. She then issued her own report setting forth her findings: "Because Dr. Meriwether repeatedly refused to change the way he addressed [Doe] in his class due to his views on transgender people, and because the way he treated [Doe] was deliberately different than the way he treated others in the class, ... he effectively created a hostile environment for [Doe]." R. 34-17, Pg. ID 1742. Milliken's whole explanation of how Meriwether violated university policy spanned just one paragraph. Id. (final paragraph). Finally, to create a "safe educational experience for all students," Dean Milliken concluded that it was necessary to discipline Meriwether. Id. She recommended placing a formal warning in his file.
Provost Jeffrey Bauer was tasked with reviewing Milliken's disciplinary recommendation before it was imposed. Meriwether wrote Provost Bauer a letter stating that he treated Doe exactly the same as he treated all male students; that he began referring to Doe without pronouns and by Doe's last name as an accommodation to Doe; and that Doe's "access to educational benefits and opportunities was never jeopardized." R. 34-18, Pg. ID 1766. Meriwether further explained that he could not use female pronouns to refer to Doe due to his "conscience and religious convictions." Id. He asked Provost Bauer to allow "reasonable minds ... to differ" on this "newly emerging cultural issue." Id. Provost Bauer rejected Meriwether's request, stating that he "approve[d] Dean Milliken's recommendation of formal disciplinary action." R. 34-19, Pg. ID 1770. Bauer did not address Meriwether's arguments to the contrary, nor did he grapple with Meriwether's request for a religious accommodation.
Shawnee State then placed a written warning in Meriwether's file. The warning reprimanded Meriwether and directed him to change the way he addresses transgender students to "avoid further corrective actions." R. 34-20, Pg. ID 1771. What does "further corrective actions" mean? Suspension without pay and termination, among other possible punishments. R. 34-4, Pg. ID 1646; see also R. 34, Pg. ID 1487.
C.
The Shawnee State faculty union then filed a grievance on Meriwether's behalf. It asked the university to (1) vacate the disciplinary action, and (2) allow Meriwether to keep speaking in a manner consistent with his religious beliefs.
502*502 Provost Bauer, who had already rejected Meriwether's claim once, was tasked with deciding the grievance. A union representative, Dr. Chip Poirot, joined Meriwether to present the grievance at a hearing. From the outset, Bauer exhibited deep hostility. He repeatedly interrupted the representative and made clear that he would not discuss the academic freedom and religious discrimination aspects of the case. The union representative tried to explain the teachings of Meriwether's church and why Meriwether felt he was being compelled to affirm a position at odds with his faith. At one point during the hearing, Provost Bauer "openly laughed." R. 34-24, Pg. ID 1780. Indeed, Bauer was so hostile that the union representative "was not able to present the grievance." Id. at 1780-81. Bauer denied the grievance.
The next step in Shawnee State's grievance process involved an appeal to the university's president. In a twist of fate, the president turned out to be Bauer. Shortly after Provost Bauer denied the grievance, he was appointed interim university president. Bauer designated two of his representatives, Shawnee State's Labor Relations Director and General Counsel, to meet with Meriwether and Poirot on his behalf.
The officials agreed with the union that Meriwether's conduct had not "created a hostile educational environment." R. 34-27, Pg. ID 1799. But they recommended ruling against Meriwether anyway. This was, they said, not a hostile-environment case; instead, it was a "differential treatment" case. Id. This change in theory contradicted the Title IX investigation and Dean Milliken's disciplinary recommendation (which Provost Bauer approved)—both of which accused Meriwether of violating university policy by "creat[ing] a hostile environment for [Doe]." R. 34-13, Pg. ID 1719; R. 34-17, Pg. ID 1741-42. The officials justified the university's refusal to accommodate Meriwether's religious beliefs by equating his views to those of a hypothetical racist or sexist. R. 34, Pg. ID 1490; R. 34-27, Pg. ID 1799. Since the university would not accommodate religiously motivated racism or sexism, it ought not accommodate Meriwether's religious beliefs. Bauer adopted his representatives' findings and denied the grievance again.
That was the end of the grievance process at Shawnee State. Because Meriwether now fears that he will be fired or suspended without pay if he does not toe the university's line on gender identity, he alleges he cannot address "a high profile issue of public concern that has significant philosophical implications." R. 34, Pg. ID 1492-93. He steers class discussions away from gender-identity issues and has refused to address the subject when students have raised it in class. The warning letter in Meriwether's file will also make it "difficult, if not impossible," for him to obtain a position at another institution once he retires from Shawnee State. Id. at 1493.
D.
Out of options at Shawnee State, Meriwether filed this lawsuit. He alleged that the university violated his rights under: (1) the Free Speech and Free Exercise Clauses of the First Amendment; (2) the Due Process and Equal Protection Clauses of the Fourteenth Amendment; (3) the Ohio Constitution; and (4) his contract with the university.
The district court referred the case to a magistrate judge. Doe and an organization, Sexuality and Gender Acceptance, then moved to intervene, and the magistrate granted their motion. Next, the defendants and intervenors filed separate motions to dismiss under Rule 12(b)(6). The magistrate recommended dismissing all of Meriwether's 503*503 federal claims and declining to exercise supplemental jurisdiction over his state-law claims. Meriwether then objected to the magistrate's report and recommendation. But the district court adopted it in full.
Meriwether now appeals the district court's decision, except for its dismissal of his equal-protection claim. We first address Meriwether's free-speech claim before turning to his free-exercise and due-process claims.
II.
"Universities have historically been fierce guardians of intellectual debate and free speech." Speech First, Inc. v. Schlissel, 939 F.3d 756, 761 (6th Cir. 2019). But here, Meriwether alleges that Shawnee State's application of its gender-identity policy violated the Free Speech Clause of the First Amendment. The district court rejected this argument and held that a professor's speech in the classroom is never protected by the First Amendment. We disagree: Under controlling Supreme Court and Sixth Circuit precedent, the First Amendment protects the academic speech of university professors. Since Meriwether has plausibly alleged that Shawnee State violated his First Amendment rights by compelling his speech or silence and casting a pall of orthodoxy over the classroom, his free-speech claim may proceed.
A.
1.
Start with the basics. The First Amendment protects "the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). Thus, the government "may not compel affirmance of a belief with which the speaker disagrees." Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 573, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). When the government tries to do so anyway, it violates this "cardinal constitutional command." Janus v. Am. Fed'n of State, Cnty. & Mun. Emps., Council 31, ___ U.S. ___, 138 S. Ct. 2448, 2463, 201 L.Ed.2d 924 (2018).
It should come as little surprise, then, "that prominent members of the founding generation condemned laws requiring public employees to affirm or support beliefs with which they disagreed." Id. at 2471 & n.8 (citing examples including Thomas Jefferson, Oliver Ellsworth, and Noah Webster). Why? Because free speech is "essential to our democratic form of government." Id. at 2464. Without genuine freedom of speech, the search for truth is stymied, and the ideas and debates necessary for the continuous improvement of our republic cannot flourish. See id.
Courts have often recognized that the Free Speech Clause applies at public universities. See, e.g., Ward v. Polite, 667 F.3d 727, 732-33 (6th Cir. 2012). Thus, the state may not act as though professors or students "shed their constitutional rights to freedom of speech or expression at the [university] gate." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Government officials violate the First Amendment whenever they try to "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion," and when they "force citizens to confess by word or act their faith therein." W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943).
To be sure, free-speech rules apply differently when the government is doing the speaking. And that remains true even when a government employee is doing the 504*504 talking. Thus, in Garcetti v. Ceballos, the Supreme Court held that normally "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006).
2.
Here, the threshold question is whether the rule announced in Garcetti bars Meriwether's free-speech claim. It does not.
Garcetti set forth a general rule regarding government employees' speech. But it expressly declined to address whether its analysis would apply "to a case involving speech related to scholarship or teaching." 547 U.S. at 425, 126 S.Ct. 1951; see also Adams v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550, 563 (4th Cir. 2011) ("The plain language of Garcetti thus explicitly left open the question of whether its principles apply in the academic genre where issues of `scholarship or teaching' are in play."). Although Garcetti declined to address the question, we can turn to the Supreme Court's prior decisions for guidance. Those decisions have "long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition." Grutter v. Bollinger, 539 U.S. 306, 329, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003).
Start with Sweezy v. New Hampshire. 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957) (plurality opinion). During the McCarthy era, New Hampshire instituted a loyalty program "to eliminate `subversive persons' among government personnel." Id. at 236, 77 S.Ct. 1203. The state legislature authorized the Attorney General to become a "one-man legislative committee" and take appropriate action if he found that a person was "subversive." Id. at 236-37, 77 S.Ct. 1203. When the Attorney General questioned public university professor Paul Sweezy, he declined to reveal the contents of a lecture he had delivered to "100 students in [a] humanities course." Id. at 243, 77 S.Ct. 1203. The Attorney General then had the court hold him in contempt. Id. at 244-45, 77 S.Ct. 1203. The case ultimately made its way to the Supreme Court, which held that a legislative inquiry into the contents of a professor's lectures "unquestionably was an invasion of [his] liberties in the areas of academic freedom and political expression." Id. at 250, 77 S.Ct. 1203. The Court explained that it "could not be seriously debated" that a professor's "right to lecture" is protected by the Constitution. Id. at 249-50, 77 S.Ct. 1203. And it emphasized "[t]he essentiality of freedom in the community of American universities." Id. at 250, 77 S.Ct. 1203. When the state targets professors' academic freedom rather than protects it, scholarship, teaching, and education "cannot flourish." Id.; see also id. at 262, 77 S.Ct. 1203 (Frankfurter, J., concurring in result) ("Political power must abstain from intrusion into this activity of freedom ... except for reasons that are exigent and obviously compelling.").
A decade later, in a case involving a similar New York law banning "subversive" activities, the Supreme Court affirmed that the Constitution protects "academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned." Keyishian v. Bd. of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). It characterized academic freedom as "a special concern of the First Amendment" and said that the First Amendment "does not tolerate laws that 505*505 cast a pall of orthodoxy over the classroom." Id. After all, the classroom is "peculiarly the `marketplace of ideas.'" Id. And when the state stifles a professor's viewpoint on a matter of public import, much more than the professor's rights are at stake. Our nation's future "depends upon leaders trained through wide exposure to [the] robust exchange of ideas"—not through the "authoritative" compulsion of orthodox speech. Id. (citation omitted); accord Sweezy, 354 U.S. at 249-50, 77 S.Ct. 1203 (plurality opinion) ("To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.").
Together, Sweezy and Keyishian establish that the First Amendment protects the free-speech rights of professors when they are teaching. See also Healy v. James, 408 U.S. 169, 180-81, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972) ("[W]e break no new constitutional ground in reaffirming this Nation's dedication to safeguarding academic freedom."); Tinker, 393 U.S. at 506, 89 S.Ct. 733 ("First Amendment rights ... are available to teachers[.]").
As a result, our 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." Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 680 (6th Cir. 2001). And we have recognized that "a professor's rights to academic freedom and freedom of expression are paramount in the academic setting." Bonnell v. Lorenzo, 241 F.3d 800, 823 (6th Cir. 2001); see Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1188-89 (6th Cir. 1995).[1] Simply put, professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship. See Hardy, 260 F.3d at 680.
In reaffirming this conclusion, we join three of our sister circuits: the Fourth, Fifth, and Ninth. In Adams v. Trustees of the University of North Carolina-Wilmington, the Fourth Circuit held that Garcetti left open the question whether professors retained academic-freedom rights under the First Amendment. 640 F.3d at 562. It concluded that the rule announced in Garcetti does not apply "in the academic context of a public university." Id.; see also Lee v. York Cnty. Sch. Div., 484 F.3d 687, 694 n.11 (4th Cir. 2007). The Fifth Circuit has also held that the speech of public university professors is constitutionally protected, reasoning that "academic freedom is a special concern of the First Amendment." Buchanan v. Alexander, 919 F.3d 847, 852-53 (5th Cir. 2019) (quotation omitted) (analyzing the claim under the Pickering-Connick framework). Likewise, the Ninth Circuit has recognized that "if applied to teaching and academic writing, Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court." Demers v. Austin, 746 F.3d 402, 411 (9th Cir. 2014). Thus, it held that "Garcetti does not—indeed, consistent with the First Amendment, cannot—apply to teaching and academic writing that are performed `pursuant to the official duties' of a teacher and professor." Id. at 412.
506*506 One final point worth considering: If professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity. A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet émigré to address his students as "comrades." That cannot be. "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe" such orthodoxy. Barnette, 319 U.S. at 642, 63 S.Ct. 1178.
3.
Shawnee State and the intervenors raise several arguments in response.
First, they suggest that we ought not apply the Supreme Court's academic-freedom cases that preceded Garcetti. But our job as lower court judges is to apply existing Supreme Court precedent unless it is expressly overruled. Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). And here, the Supreme Court has not overruled its academic-freedom cases. "It is not our prerogative to set this binding precedent aside." Mayhew v. Town of Smyrna, 856 F.3d 456, 464 (6th Cir. 2017). Nor is it our prerogative to cast aside our holding "that a teacher's in-class speech deserves constitutional protection." Hardy, 260 F.3d at 680. Garcetti expressed no view on this issue and even recognized that "expression related to ... classroom instruction" might not fit within the Court's "customary employee-speech jurisprudence." Garcetti, 547 U.S. at 425, 126 S.Ct. 1951. Thus, we remain bound by prior Supreme Court and Sixth Circuit precedent in this area.
Second, they argue that even if there is an academic-freedom exception to Garcetti, it does not protect Meriwether's use of titles and pronouns in the classroom. As they would have it, the use of pronouns has nothing to do with the academic-freedom interests in the substance of classroom instruction. But that is not true. Any teacher will tell you that choices about how to lead classroom discussion shape the content of the instruction enormously. That is especially so here because Meriwether's choices touch on gender identity—a hotly contested matter of public concern that "often" comes up during class discussion in Meriwether's political philosophy courses. R. 34, Pg. ID 1492; see Janus, 138 S. Ct. at 2476 (describing gender identity as a "controversial [and] sensitive political topic[ ] ... of profound value and concern to the public" (cleaned up)).
By forbidding Meriwether from describing his views on gender identity even in his syllabus, Shawnee State silenced a viewpoint that could have catalyzed a robust and insightful in-class discussion. Under the First Amendment, "the mere dissemination of ideas ... on a state university campus may not be shut off in the name alone of `conventions of decency.'" Papish v. Bd. of Curators of the Univ. of Mo., 410 U.S. 667, 670, 93 S.Ct. 1197, 35 L.Ed.2d 618 (1973) (per curiam). Rather, the lesson of Pickering and the Court's academic-freedom decisions is that the state may do so only when its interest in restricting a professor's in-class speech outweighs his interest in speaking.
Remember, too, that the university's position on titles and pronouns goes both ways. By defendants' logic, a university could likewise prohibit professors from addressing university students by their preferred gender pronouns—no matter the professors' own views. And it could even impose such a restriction while denying professors the ability to explain to students why they were doing so. But that's 507*507 simply not the case. Without sufficient justification, the state cannot wield its authority to categorically silence dissenting viewpoints. See Keyishian, 385 U.S. at 602-03, 87 S.Ct. 675; Sweezy, 354 U.S. at 250-51, 77 S.Ct. 1203 (plurality opinion); Wieman v. Updegraff, 344 U.S. 183, 195-96, 73 S.Ct. 215, 97 L.Ed. 216 (1952) (Frankfurter, J., concurring); Barnette, 319 U.S. at 639, 63 S.Ct. 1178; see also Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 835-36, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995).
Thus, the academic-freedom exception to Garcetti covers all classroom speech related to matters of public concern, whether that speech is germane to the contents of the lecture or not. The need for the free exchange of ideas in the college classroom is unlike that in other public workplace settings. And a professor's in-class speech to his students is anything but speech by an ordinary government employee. Indeed, in the college classroom there are three critical interests at stake (all supporting robust speech protection): (1) the students' interest in receiving informed opinion, (2) the professor's right to disseminate his own opinion, and (3) the public's interest in exposing our future leaders to different viewpoints. See Lane v. Franks, 573 U.S. 228, 236, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014); Sweezy, 354 U.S. at 250, 77 S.Ct. 1203 (plurality opinion). Because the First Amendment "must always be applied `in light of the special characteristics of the... environment' in the particular case," Healy, 408 U.S. at 180, 92 S.Ct. 2338 (alteration in original) (quoting Tinker, 393 U.S. at 506, 89 S.Ct. 733), public universities do not have a license to act as classroom thought police. They cannot force professors to avoid controversial viewpoints altogether in deference to a state-mandated orthodoxy. Otherwise, our public universities could transform the next generation of leaders into "closed-circuit recipients of only that which the State chooses to communicate." Tinker, 393 U.S. at 511, 89 S.Ct. 733. Thus, "what constitutes a matter of public concern and what raises academic freedom concerns is of essentially the same character." Dambrot, 55 F.3d at 1188.
Of course, some classroom speech falls outside the exception: A university might, for example, require teachers' to call roll at the start of class, and that type of non-ideological ministerial task would not be protected by the First Amendment. Shawnee State says that the rule at issue is similarly ministerial. But as we discuss below, titles 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.
Finally, defendants argue that academic freedom belongs to public universities, not professors. But we've held that university professors "have ... First Amendment rights when teaching" that they may assert against the university. Hardy, 260 F.3d at 680; see Bonnell, 241 F.3d at 823. So this arguments fails.
B.
Although Garcetti does not bar Meriwether's free-speech claim, that is not the end of the matter. We must now apply the longstanding Pickering-Connick framework to determine whether Meriwether has plausibly alleged that his in-class speech was protected by the First Amendment. See Hardy, 260 F.3d at 678 (taking this approach in an academic-speech 508*508 case); Adams, 640 F.3d at 564 (same); Buchanan, 919 F.3d at 853 (same); Demers, 746 F.3d at 412-13 (same). Under that framework, we ask two questions: First, was Meriwether speaking on "a matter of public concern"? Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). And second, was his interest in doing so greater than the university's interest in "promoting the efficiency of the public services it performs through" him? Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).
1.
To determine whether speech involves a matter of public concern, we look to the "content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48, 103 S.Ct. 1684. When speech relates "to any matter of political, social, or other concern to the community," it addresses a matter of public concern. Id. at 146, 103 S.Ct. 1684. Thus, a teacher's in-class speech about "race, gender, and power conflicts" addresses matters of public concern. Hardy, 260 F.3d at 679. A basketball coach using racial epithets to motivate his players does not. Dambrot, 55 F.3d at 1190. "The linchpin of the inquiry is, thus, for both public concern and academic freedom, the extent to which the speech advances an idea transcending personal interest or opinion which impacts our social and/or political lives." Id. at 1189.
Meriwether did just that in refusing to use gender-identity-based pronouns. And the "point of his speech" (or his refusal to speak in a particular manner) was to convey a message. Id. at 1187. Taken in context, his speech "concerns a struggle over the social control of language in a crucial debate about the nature and foundation, or indeed real existence, of the sexes." Professors' Amicus Br. at 1. That is, his mode of address was the message. It reflected his conviction that one's sex cannot be changed, a topic which has been in the news on many occasions and "has become an issue of contentious political... debate." See Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1051 (6th Cir. 2001).
From courts to schoolrooms this controversy continues. Recently, the Fifth Circuit rejected an appellant's motion to be referred to by the appellant's preferred gender pronouns—over an "emphatic[] dissent." United States v. Varner, 948 F.3d 250, 254, 261 (5th Cir. 2020). And, on the other side, a Texas high school generated controversy when it permitted its students to display preferred gender pronouns on their online profiles.[2] Further examples abound. In short, the use of gender-specific titles and pronouns has produced a passionate political and social debate. All this points to one conclusion: Pronouns can and do convey a powerful message implicating a sensitive topic of public concern.
The history of pronoun usage in American discourse underscores this point. Following the 1745 publication of Anne Fisher's A New Grammar, the "idea that he, him and his should go both ways caught on and was widely adopted."[3] But in the latter half of the twentieth century, gendered pronouns became imbued with new 509*509 meaning. The feminist movement came to view the generic use of masculine pronouns as "a crucial mechanism for the conceptual invisibility of women." Carol Sanger, Feminism and Disciplinarity: The Curl of the Petals, 27 Loy. L.A. L. Rev. 225, 247 n.87 (1993). It regarded the "generic masculine pronoun" as rooted in "pre-existing cultural prejudice" and subtly "influencing our perceptions and recirculating the sexist prejudice." Deborah Cameron, Feminism and Linguistic Theory 137 (2d ed. 1992); see also Susan A. Speer, Gender Talk: Feminism, Discourse and Conversation Analysis 2-3 (2005). As a result, "feminist attempts at language reform" served as a means for "sensitiz[ing] individuals to ways in which language is discriminatory towards women." Susan Ehrlich & Ruth King, Gender-based language reform and the social construction of meaning, 3 Discourse & Soc'y 151, 156 (1992). To the feminist cause, pronouns mattered.
And history tends to repeat itself. 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. See Dambrot, 55 F.3d at 1189. Meriwether's speech manifested his belief that "sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual's feelings or desires." R. 34, Pg. ID 1469. The "focus," "point," "intent," and "communicative purpose" of the speech in question was a matter of public concern. Farhat v. Jopke, 370 F.3d 580, 592 (6th Cir. 2004) (citations omitted).
And even the university appears to think this pronoun debate is a hot issue. Otherwise, why would it forbid Meriwether from explaining his "personal and religious beliefs about gender identity" in his syllabus? R. 34, Pg. ID 1478, 1488-91. No one contests that what Meriwether proposed to put in his syllabus involved a matter of public concern. See Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 253, 256 (6th Cir. 2006) (holding that "intended speech" which the plaintiff was later "unable" to make "touched on a matter of public concern"). In short, when Meriwether waded into the pronoun debate, he waded into a matter of public concern.
2.
Because Meriwether was speaking on a matter of public concern, we apply Pickering balancing to determine whether the university violated his First Amendment rights. This test requires us "to arrive at a balance between the interests of the [professor], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." 391 U.S. at 568, 88 S.Ct. 1731. Here, that balance favors Meriwether.
Start with Meriwether's interests. We begin with "the robust tradition of academic freedom in our nation's post-secondary schools." Hardy, 260 F.3d at 680; see also Keyishian, 385 U.S. at 603, 87 S.Ct. 675 ("Our Nation is deeply committed to safeguarding academic freedom[.]"). That tradition alone offers a strong reason to protect Professor Meriwether's speech. After all, academic freedom is "a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom." Keyishian, 385 U.S. at 603, 87 S.Ct. 675. And the First Amendment interests are especially strong here because Meriwether's speech also relates to his core religious and philosophical beliefs. Finally, this case implicates an additional 510*510 element: potentially compelled speech on a matter of public concern. And "[w]hen speech is compelled ... additional damage is done." Janus, 138 S. Ct. at 2464.
Those interests are powerful. Here, the university refused even to permit Meriwether to comply with its pronoun mandate while expressing his personal convictions in a syllabus disclaimer. That ban is anathema to the principles underlying the First Amendment, as the "proudest boast of our free speech jurisprudence is that we protect the freedom to express `the thought that we hate.'" Matal v. Tam, ___ U.S. ___, 137 S. Ct. 1744, 1764, 198 L.Ed.2d 366 (2017) (plurality opinion) (quoting United States v. Schwimmer, 279 U.S. 644, 655, 49 S.Ct. 448, 73 L.Ed. 889 (1929) (Holmes, J., dissenting)). Indeed, the premise that gender identity is an idea "embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view." Boy Scouts of Am. v. Dale, 530 U.S. 640, 660, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000).
And this is particularly true in the context of the college classroom, where students' interest in hearing even contrarian views is also at stake. "Teachers and students must always remain free to inquire, to study and to evaluate, [and] to gain new maturity and understanding." Sweezy, 354 U.S. at 250, 77 S.Ct. 1203 (plurality opinion); see also Blum v. Schlegel, 18 F.3d 1005, 1012 (2d Cir. 1994) (noting that "the efficient provision of services" by a university "actually depends, to a degree, on the dissemination in public fora of controversial speech implicating matters of public concern").
On the other side of the ledger, Shawnee State argues that it has a compelling interest in stopping discrimination against transgender students. It relies on EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. in support of this proposition. 884 F.3d 560 (6th Cir. 2018). But Harris does not resolve this case. There, a panel of our court held that an employer violates Title VII when it takes an adverse employment action based on an employee's transgender status. Id. at 571, 591.[4] The panel did not hold—and indeed, consistent with the First Amendment, could not have held—that the government always has a compelling interest in regulating employees' speech on matters of public concern. Doing so would reduce Pickering to a shell. And it would allow universities to discipline professors, students, and staff any time their speech might cause offense. That is not the law. See Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969) ("[T]he public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers."). Purportedly neutral non-discrimination policies cannot be used to transform institutions of higher learning into "enclaves of totalitarianism." Tinker, 393 U.S. at 511, 89 S.Ct. 733.
Turning to the facts, the university's interest in punishing Meriwether's speech is comparatively weak. See Hardy, 260 F.3d at 680-81. When the university demanded that Meriwether refer to Doe using female pronouns, Meriwether proposed a compromise: He would call on Doe using Doe's last name alone. That seemed like a 511*511 win-win. Meriwether would not have to violate his religious beliefs, and Doe would not be referred to using pronouns Doe finds offensive. Thus, on the allegations in this complaint, it is hard to see how this would have "create[d] a hostile learning environment that ultimately thwarts the academic process." Bonnell, 241 F.3d at 824. It is telling that Dean Milliken at first approved this proposal. And when Meriwether employed this accommodation throughout the semester, Doe was an active participant in class and ultimately received a high grade.
As we stated in Hardy, "a school's interest in limiting a teacher's speech is not great when those public statements `are neither shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.'" 260 F.3d at 681 (quoting Pickering, 391 U.S. at 572-73, 88 S.Ct. 1731). The mere "fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Tinker, 393 U.S. at 508, 89 S.Ct. 733. At this stage of the litigation, there is no suggestion that Meriwether's speech inhibited his duties in the classroom, hampered the operation of the school, or denied Doe any educational benefits. See Bonnell, 241 F.3d at 824. Without such a showing, the school's actions "mandate[ ] orthodoxy, not anti-discrimination," and ignore the fact that "[t]olerance is a two-way street." Ward, 667 F.3d at 735. Thus, the Pickering balance strongly favors Meriwether.
Finally, Shawnee State and the intervenors argue that Title IX compels a contrary result. We disagree. Title IX prohibits "discrimination under any education program or activity" based on sex. 20 U.S.C. § 1681(a). The requirement "that the discrimination occur `under any education program or activity' suggests that the behavior [must] be serious enough to have the systemic effect of denying the victim equal access to an educational program or activity." Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 652, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999); see Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 362 (6th Cir. 2012). But Meriwether's decision not to refer to Doe using feminine pronouns did not have any such effect. As we have already explained, there is no indication at this stage of the litigation that Meriwether's speech inhibited Doe's education or ability to succeed in the classroom. See 20 U.S.C. § 1681(a); Doe v. Miami Univ., 882 F.3d 579, 590 (6th Cir. 2018) (holding that a Title IX hostile-environment claim requires that one's "educational experience [be] permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive so as to alter the conditions of the victim's educational environment" (cleaned up)). Bauer even admitted that Meriwether's conduct "was not so severe and pervasive that it created a hostile educational environment." R. 34-27, Pg. ID 1799. Thus, Shawnee State's purported interest in complying with Title IX is not implicated by Meriwether's decision to refer to Doe by name rather than Doe's preferred pronouns.
* * *
In sum, "the Founders of this Nation... `believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.'" Dale, 530 U.S. at 660-61, 120 S.Ct. 2446 (quoting Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring)). Shawnee State allegedly flouted that core principle of the First Amendment. Taking the allegations as true, we 512*512 hold that the university violated Meriwether's free-speech rights.[5]
III.
Meriwether next argues that as a public university, Shawnee State violated the Free Exercise Clause when it disciplined him for not following the university's pronoun policy. We agree.
The Constitution requires that the government commit "itself to religious tolerance." Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rights Comm'n, ___ U.S. ___, 138 S. Ct. 1719, 1731, 201 L.Ed.2d 35 (2018) (citation omitted). Thus, laws that burden religious exercise are presumptively unconstitutional unless they are both neutral and generally applicable. Emp't Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872, 877-78, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). To determine whether a law is neutral, courts must look beyond the text and scrutinize the history, context, and application of a challenged law. Masterpiece, 138 S. Ct. at 1731; Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). In this way, the Free Exercise Clause guards against "even subtle departures from neutrality on matters of religion." Masterpiece, 138 S. Ct. at 1731 (cleaned up).
A.
Meriwether has plausibly alleged that Shawnee State's application of its gender-identity policy was not neutral for at least two reasons. First, officials at Shawnee State exhibited hostility to his religious beliefs. And second, irregularities in the university's adjudication and investigation processes permit a plausible inference of non-neutrality.[6]
1.
State actors must give "neutral and respectful consideration" to a person's sincerely held religious beliefs. Masterpiece, 138 S. Ct. at 1729. When they apply an otherwise-neutral law with religious hostility, they violate the Free Exercise Clause. Id. at 1731. In this case, "the pleadings give rise to a sufficient `suspicion' of religious animosity to warrant `pause' for discovery." New Hope Family Servs., Inc. v. Poole, 966 F.3d 145, 163 (2d Cir. 2020) (quoting Masterpiece, 138 S. Ct. at 1731). Meriwether "was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided." Masterpiece, 138 S. Ct. at 1732. And that, he at least plausibly did not receive.
Start with one of the individuals Meriwether alleges was involved in the action against him—Department Chair Jennifer Pauley. Meriwether came to her to discuss his religious concerns about the new policy. Pauley might have responded with tolerance, or at least neutral objectivity. She did not. Instead, she remarked that religion "oppresses students" and said that even its "presence" at universities is "counterproductive." R. 34, Pg. ID 1473. Christians in particular, she said, were "primarily motivated out of fear." Id. In her view, "Christian doctrines ... should 513*513 not be taught." Id. And for good measure, she added that Christian professors "should be banned" from teaching courses on Christianity—knowing that Meriwether had done so for decades. Id. Neutral and non-hostile? As alleged, no. In fact, it has the makings of the very religious intolerances that "gave concern to those who drafted the Free Exercise Clause." Lukumi, 508 U.S. at 532, 113 S.Ct. 2217 (citation omitted).
So what does the university say about these statements? It claims that Pauley was not involved in formulating, interpreting, or applying the university's gender-identity policy, and that she was not involved in the action against him. Maybe so. But at the motion-to-dismiss stage, courts must accept the allegations as true. And here, the complaint alleges that Pauley was involved.[7]
And Pauley was not the only allegedly hostile actor. After Meriwether was disciplined, a union representative presented Meriwether's grievance to Provost Bauer—a supposedly neutral adjudicator. But Bauer did not seem so neutral. He repeatedly interrupted the union representative and made clear that he would not discuss the "academic freedom and religious discrimination aspects" of the case. R. 34-24, Pg. ID 1780. The union representative tried to explain Meriwether's religious beliefs and the teachings of his church. But Provost Bauer responded with open laughter.[8] And after the laughter, Bauer became "so uncooperative" that the union representative "was not able to present the grievance" at all. R. 34, Pg. ID 1489. Bauer's alleged actions and words demonstrated anything but the "neutral and respectful consideration" that the Constitution demands. Masterpiece, 138 S. Ct. at 1729.
Shawnee State's Director of Labor Relations (Bauer's representative) then piled on when he reviewed the grievance. In his view, Meriwether's convictions were no better—and no more worthy of tolerant accommodation—than religiously motivated racism or sexism. Bauer adopted this reasoning in denying Meriwether's grievance once again.
If this sounds familiar, it should. In Masterpiece Cakeshop, the Supreme Court reversed a decision of the Colorado Civil Rights Commission when the Commission made hostile statements that "cast doubt on the fairness" of the adjudication. 138 S. Ct. at 1729-30. The Commission had said that "religion has been used to justify all kinds of discrimination throughout history," suggesting that the defendant was using religion as a pretext for discrimination. Id. at 1729. The Supreme Court called such comments "inappropriate" and said they called the Commission's impartiality into question. Id. at 1729-30. That same rationale applies here. Meriwether 514*514 respectfully sought an accommodation that would both protect his religious beliefs and make Doe feel comfortable. In response, the university derided him and equated his good-faith convictions with racism. An inference of religious hostility is plausible in these circumstances. See Poole, 966 F.3d at 168-70.
In sum, Meriwether has plausibly alleged that religious hostility infected the university's interpretation and application of its gender-identity policy. See Masterpiece, 138 S. Ct. at 1730. Whether this claim ultimately prevails will depend on the results of discovery and the clash of proofs at trial. For now, we simply hold that Meriwether has plausibly alleged a free-exercise claim based on religious hostility.
2.
While the hostility Shawnee State exhibited would be enough for Meriwether's claim to survive a motion to dismiss, Meriwether has more. He alleges that various irregularities in the university's investigation and adjudication processes also permit an inference of non-neutrality. We agree.
Not all laws that look "neutral and generally applicable" are constitutional. Lukumi, 508 U.S. at 534, 113 S.Ct. 2217 ("Facial neutrality is not determinative."). The Free Exercise Clause "forbids subtle departures from neutrality and covert suppression of particular religious beliefs." Id. (cleaned up); Ward, 667 F.3d at 738 (noting that while a law might appear "neutral and generally applicable on its face, ... in practice [it may be] riddled with exemptions or worse [be] a veiled cover for targeting a belief or a faith-based practice"). Thus, courts have an obligation to meticulously scrutinize irregularities to determine whether a law is being used to suppress religious beliefs. See Lukumi, 508 U.S. at 534-35, 113 S.Ct. 2217; Monclova Christian Acad. v. Toledo-Lucas Cnty. Health Dep't, 984 F.3d 477, 481-82 (6th Cir. 2020).[9] And here, that scrutiny reveals signs of non-neutrality.
First, the university's alleged basis for disciplining Meriwether was a moving target. The Title IX report claimed that Meriwether violated the university's gender-identity policy by creating a "hostile educational environment." R. 34-13, Pg. ID 1719. Dean Milliken agreed and recommended disciplining Meriwether for this "hostile environment." R. 34-17, Pg. ID 1742. Yet when Meriwether grieved his discipline, university officials conceded that Meriwether had never created a hostile environment. Instead, they said the case was about "disparate treatment." R. 34-27, Pg. ID 1799. But at oral argument, the university changed its position once 515*515 again: It said that "this really is a hostile-environment case." Oral Arg. 37:00-04.
These repeated changes in position, along with the alleged religious hostility, permit a plausible inference that the university was not applying a preexisting policy in a neutral way, but was instead using an evolving policy as pretext for targeting Meriwether's beliefs. See Ward, 667 F.3d at 736-37; see also Lukumi, 508 U.S. at 534, 113 S.Ct. 2217. And it is also plausible that the re-interpretation of the policy was an "after-the-fact invention" designed to justify punishing Meriwether for his religiously motivated speech, not a neutral interpretation of a generally applicable policy. See Ward, 667 F.3d at 736 (noting that "after-the-fact invention[s]" permit an inference of religious discrimination).
Second, the university's policy on accommodations was a moving target. Why does this matter? Because when "individualized exemptions from a general requirement are available, the government `may not refuse to extend that system to cases of "religious hardship" without compelling reason.'" Lukumi, 508 U.S. at 537, 113 S.Ct. 2217 (quoting Smith, 494 U.S. at 884, 110 S.Ct. 1595).
When Dean Milliken told Meriwether that he was violating the university's gender-identity policy, Meriwether proposed a compromise: He would address Doe using Doe's last name and refrain from using pronouns to address Doe. Dean Milliken accepted this accommodation. But several weeks later, she retracted the agreed-upon accommodation and demanded that Meriwether use Doe's preferred pronouns if he intended to use pronouns to refer to other students. Now the university claims that its policy does not permit any religious accommodations.
This about-face permits a plausible inference that the policy allows accommodations, but the university won't provide one here. If this inference is supported through discovery and trial, a jury could conclude that the university's refusal to stick to its accommodation is "pretext for punishing [Meriwether's] religious views and speech." Ward, 667 F.3d at 735.
Third, the university's Title IX investigation raises several red flags. On their own, these issues might not warrant an inference of non-neutrality. But combined with the other allegations in the complaint, they provide probative "circumstantial evidence" of discrimination. Lukumi, 508 U.S. at 540, 113 S.Ct. 2217.
For starters, the Title IX investigator interviewed just four witnesses, including Meriwether and Doe. She did not interview a single non-transgender student in any of Meriwether's classes, nor did she ask Meriwether to recommend any potential witnesses. Indeed, except for Meriwether and Doe, not a single witness testified about any interactions between the two. Even so, the Title IX officer concluded that Meriwether "created a hostile environment." R. 34-13, Pg. ID 1719.
Under the university's policies, a hostile environment exists only when "there is harassing conduct that limits, interferes with or denies educational benefits or opportunities, from both a subjective (the complainant's) and an objective (reasonable person's) viewpoint." R. 34-2, Pg. ID 1523. But the Title IX report does not explain why declining to use a student's preferred pronouns constitutes harassment. It does not explain how Meriwether's conduct interfered with or denied Doe or Doe's classmates any "educational benefits or opportunities," let alone how an "objective observer" could reach such a conclusion. R. 34-2, Pg. ID 1523. And it does not grapple with Meriwether's request for an accommodation based on his sincerely held religious beliefs. In short, 516*516 the university's cursory investigation and findings provide circumstantial evidence of "subtle departures from neutrality." Lukumi, 508 U.S. at 534, 113 S.Ct. 2217 (citation omitted). And this suggests that the "neutral ... consideration to which [Meriwether] was entitled was compromised here." Masterpiece, 138 S. Ct. at 1729.
3.
The university raises several counterarguments, none of which we find persuasive.
First, the university seems to suggest that compliance with nondiscrimination laws can never burden an individual's religious beliefs under our holding in Harris Funeral Homes. If that is their argument, it mischaracterizes the case. In Harris, a panel of our court held that Title VII prevented an employer from firing a transgender employee because of the employee's transgender status. 884 F.3d at 574-75. The employer believed that the law burdened the free exercise of his religion because he would have to endorse the mutability of sex to comply. Id. at 589. The panel explained that even if the belief were sincere, that did not resolve the question. Id. And ultimately, the panel determined that compliance with Title VII did not burden the employer's religious beliefs because "requiring the [employer] to refrain from firing an employee with different ... views ... does not, as a matter of law, mean that [the employer] is endorsing or supporting those views." Id. As the university would have it, that means that compliance with a nondiscrimination law can never amount to coerced endorsement of contrary religious views.
That is not what we said, and that is not the law. Depending on the circumstances, the application of a nondiscrimination policy could force a person to endorse views incompatible with his religious convictions. And a requirement that an employer not fire an employee for expressing a transgender identity is a far cry from what we have here—a requirement that a professor affirmatively change his speech to recognize a person's transgender identity. The university itself recognizes that Harris was careful not to require an "endorsement regarding the mutability of sex." Defendants' Br. at 46; see Harris, 884 F.3d at 589. Remember, too, that Meriwether proposed a compromise: He would consider referring to students according to their self-asserted gender identity if he could also include a note in the syllabus about his religious beliefs on the issue. The university said no; Meriwether would violate the policy even by disclaiming a belief in transgender identity. It cannot now argue that the policy did not require Meriwether to endorse a view on gender identity contrary to his faith.
Next, the intervenors submit that because Milliken "issued [the] written warning," and because "there is no allegation that Milliken harbored any animus toward plaintiff's religious beliefs," Meriwether's free-exercise claim must fail. Intervenors' Br. at 52. Why? Because the original disciplinary decision was not the product of animus. But that argument is both factually and legally flawed.
According to the facts in the complaint, Milliken did not issue the warning. She recommended it, but Bauer imposed the punishment and notified Meriwether of it. And in any case, Masterpiece forecloses this argument: A disciplinary proceeding that is fair at the beginning still violates the Free Exercise Clause if it is influenced by religious hostility later. In Masterpiece, the Colorado Civil Rights Division, like Milliken, first "found probable cause that Phillips violated [the Colorado Anti-Discrimination Act] and referred the case to the Civil Rights Commission." 138 S. Ct. at 517*517 1726. An ALJ then "ruled against Phillips and the cakeshop." Id. And the Commission, like Bauer, "affirmed the ALJ's decision in full." Id. Neither the Civil Rights Division nor the ALJ exhibited any hostility. But the Commission was hostile, and that was enough. Id. at 1725, 1729-30. It doesn't matter that some stages of a proceeding are fair and neutral if others are not. What matters is whether unconstitutional animus infected the proceedings.
Finally, the university argues that Meriwether simply could have complied with the alternative it offered him: Don't use any pronouns or sex-based terms at all. This offer, the university says, would not violate Meriwether's religious beliefs. But such an offer has two problems. First, it would prohibit Meriwether from speaking in accordance with his belief that sex and gender are conclusively linked. See Riley v. Nat'l Fed'n of Blind, 487 U.S. 781, 796, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (explaining that the "difference between compelled speech and compelled silence... is without constitutional significance"). And second, such a system would be impossible to comply with, especially in a class heavy on discussion and debate. No "Mr." or "Ms." No "yes sir" or "no ma'am." No "he said" or "she said." And when Meriwether slipped up, which he inevitably would (especially after using these titles for twenty-five years), he could face discipline. Our rights do not hinge on such a precarious balance.
The effect of this Hobson's Choice is that Meriwether must adhere to the university's orthodoxy (or face punishment). This is coercion, at the very least of the indirect sort. And we know the Free Exercise Clause protects against both direct and indirect coercion. Trinity Lutheran Church of Columbia, Inc. v. Comer, ___ U.S. ___, 137 S. Ct. 2012, 2022, 198 L.Ed.2d 551 (2017); see also McDaniel v. Paty, 435 U.S. 618, 633, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978) (Brennan, J., concurring in judgment) (The "proposition—that the law does not interfere with free exercise because it does not directly prohibit religious activity, but merely conditions eligibility for office on its abandonment—is... squarely rejected by precedent."). Simply put, the alternative the university offered does not save its policy.
B.
For the reasons just explained, Meriwether has plausibly alleged that Shawnee State burdened his free-exercise rights. Thus, we apply "the most rigorous of scrutiny" to the university's actions. Lukumi, 508 U.S. at 546, 113 S.Ct. 2217. We uphold them only if they "advance interests of the highest order" and are "narrowly tailored in pursuit of those interests." Id. (cleaned up). The university does not even argue that its application of the policy meets this standard. Thus, we hold that Meriwether's free-exercise claim may proceed.[10]
III.
Meriwether's final claim is that the policy is unconstitutionally vague as applied to him. The Supreme Court has told us that a policy is so vague as to 518*518 violate due process when it either (1) fails to inform ordinary people what conduct is prohibited, or (2) allows for arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). The standards depend on the legal context: There is "substantially more room for imprecision in regulations bearing only civil, or employment, consequences, than would be tolerated in a criminal code." Dade v. Baldwin, 802 F. App'x 878, 885 (6th Cir. 2020) (citing Arnett v. Kennedy, 416 U.S. 134, 159-60, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (plurality opinion); Vill. of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498-99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)). Even where First Amendment values are at stake, "employment standards `are not void for vagueness as long as ordinary persons using ordinary common sense would be notified that certain conduct will put them at risk" of discipline. Dade, 802 F. App'x at 885 (quoting San Filippo v. Bongiovanni, 961 F.2d 1125, 1136 (3d Cir. 1992)); see Arnett, 416 U.S. at 158-61, 94 S.Ct. 1633 (plurality opinion). Finally, our analysis must turn on the "particular facts at issue, for a plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." Holder v. Humanitarian Law Project, 561 U.S. 1, 18-19, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010) (cleaned up).
Looking to the particular facts here, Meriwether was on notice that the policy prohibited his conduct. As Meriwether alleges, the policy prohibits gender-identity discrimination, with gender-identity being defined to include "how individuals perceive themselves and what they call themselves." R. 34-2, Pg. ID 1522. When Meriwether asked the university administrators for guidance, they ultimately told him he had to use Doe's preferred pronouns. And when he didn't comply, they disciplined him. Since he was clearly on notice that the policy applied to his conduct, he may not challenge it for vagueness. See Parker v. Levy, 417 U.S. 733, 755-56, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974).
Meriwether also failed to argue that the policy allowed for arbitrary and discriminatory enforcement. His conclusory assertion that the policy gives officials "unbridled discretion" in enforcement does not cut it. R. 34, Pg. ID 1465. And to the extent that he developed the point a bit more in his reply brief, that does not suffice. Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir. 2010). Thus, Meriwether's argument that the policy allowed for arbitrary and discriminatory enforcement fails as well.
IV.
For the reasons set forth above, we affirm the district court's due-process holding, reverse its free-speech and free-exercise holdings, vacate its dismissal of the state-law claims, and remand for further proceedings consistent with this opinion.
[1] Shawnee State and the intervenors suggest that our decision in Evans-Marshall v. Board of Education of Tipp City is to the contrary. 624 F.3d 332 (6th Cir. 2010). Not so. There, we held that "the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools." Id. at 334. We distinguished college and university professors and made clear that our holding was limited to schoolteachers. Id. at 343-44.
[2] Alexandra Cronin, Controversy Sparks over Frisco Transgender Students' Right to Choose Preferred Pronouns, LOCAL PROFILE (Sept. 28, 2020), https://localprofile.com/2020/09/28/frisco-transgender-students-preferred-pronouns/.
[3] Patricia T. O'Conner & Stewart Kellerman, All-Purpose Pronoun, N.Y. TIMES MAG. (July 21, 2009), https://www.nytimes.com/2009/07/26/magazine/26FOB-onlanguage-t html.
[4] Title VII differs from Title IX in important respects: For example, under Title IX, universities must consider sex in allocating athletic scholarships, 34 C.F.R. § 106.37(c), and may take it into account in "maintaining separate living facilities for the different sexes." 20 U.S.C. § 1686. Thus, it does not follow that principles announced in the Title VII context automatically apply in the Title IX context.
[5] The district court's conclusions about Meriwether's remaining free-speech claims were all premised on the notion that his speech was not protected. Because that premise was legally erroneous, we vacate all of the district court's free-speech holdings.
[6] Of course, to have standing to bring a Free Exercise claim, Meriwether must have also suffered an injury because of the non-neutrality. Here, he claims that the non-neutrality led to his ultimate discipline. So he has standing to bring his claim.
[7] Ultimately, Meriwether bears the burden of proving that Pauley was involved in the decision-making process. And if these were the only allegations in the complaint, this would be a much more difficult case since Meriwether's assertion that Pauley was involved does not make clear how she influenced the disciplinary decision. But we need not resolve this difficult question now because Meriwether has alleged sufficient additional facts against the university to withstand a motion to dismiss.
[8] The defendants and the district court stress that Poirot's notes referencing the open laughter state that Bauer laughed "at some point" during the presentation, without saying precisely when. But the complaint itself clarifies that the laughter occurred "[w]hen Dr. Poirot outlined the religious beliefs that Dr. Meriwether and his church hold." R. 34, Pg. ID 1488; accord R. 34-24, Pg. ID 1780 (discussing the laughter in the context of the religious aspects of the presentation). Pending discovery, we must accept that allegation as true.
[9] The obligation to scrutinize irregularities is longstanding. In Yick Wo v. Hopkins, for example, the Supreme Court scrutinized the application of a new city ordinance that appeared "fair on its face" only to find that it was being "administered ... with an evil eye." 118 U.S. 356, 373-74, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). The Supreme Court held that San Francisco violated the Equal Protection Clause when it declined to renew the petitioner's laundry-business license under its new ordinance. Id. at 374, 6 S.Ct. 1064. The Court held that the city acted out of discriminatory animus because the petitioner—a Chinese immigrant—had operated his business for twenty-two years without incident, and because San Francisco tended to use its "arbitrary power" under the new ordinance to deny licenses only to Chinese immigrants. Id. at 358, 6 S.Ct. 1064 (statement of facts); id. at 366, 374, 6 S.Ct. 1064 (opinion of the Court). The Court found it constitutionally "intolerable" that a man's "means of living" could be disrupted by the "mere will" of a public official who harbors discriminatory animus against him. Id. at 370, 6 S.Ct. 1064. The Equal Protection Clause does not tolerate irregular, discriminatory application of "neutral" laws. Nor does the Free Exercise Clause.
[10] Because the complaint sufficiently alleges non-neutrality, we need not consider the harder question of whether Employment Division v. Smith applies. Meriwether argues that because the university's speech regulations are "at odds with our nation's history and traditions," they are not subject to Smith's neutral-and-generally-applicable test. See Appellant Br. 45 (citing Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 190, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012)). If resolving the applicability of Smith becomes necessary as this suit progresses, the district court should do so in the first instance.