In the interest of catching up on interesting 2021 cases that I did not have time to previously summarize, here are a few interesting decisions:
· A divided Supreme Court found that a California regulation
giving union organizers the right to enter agricultural employers’ property for
a few hours 120 days each year constituted a “per se” taking in violations of
the Takings Clause which entitled the employer to compensation because the
regulation appropriated the property owner’s right to exclude third parties. Cedar Point Nursery v. Hassid, 141 S.Ct. 2063
(2021). Property can be “taken” without it being
permanent and the temporary nature goes only to the amount of compensation due
for the taking.
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.
. . .
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 simply not the case. Without sufficient justification, the state cannot wield its authority to categorically silence dissenting viewpoints.
. . .
. . . . 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.
. . . .
. . . 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 Court also agreed that the professor had stated a violation of the Free Exercise clause when he was disciplined for not following the university's pronoun policy.
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.
. . .
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 (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 Sixth Circuit reversed the motion to dismiss granted to a union which was accused of retaliating against a member who had criticized union members to an employer for overbilling in an attempt to get himself hired. Barger v. United Bhd of Carp. & Joiners, 3 F.4th 254 (6th Cir. 2021). “Motive is not dispositive of the form-content-context inquiry, and if a union’s retaliation is imposed swiftly so as to prevent a union member’s ability to publicize his speech, then the lack of publicization cannot be used against the union member.”
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
