There could be a significant First Amendment case brewing in New York after the School of Education at the State University of New York-Geneseo suspended student Owen Stevens for posting his view that gender is limited to biologically males and females. As a state institution, SUNY is subject to the limitations of the First Amendment and Stevens could challenge the action based on his statements on Instagram.
I have not been able to find the letter sent to Stevens by the school but it is quoted on a conservative website, The Daily Wire. According to that report, Owen posted on Instagram that there are only two genders. This may be that posting:
The school reportedly maintains that such statements made on social media are grounds for suspension and other disciplinary action.
While she did not refer to him by name, SUNY-Geneseo President Denise Battles sent out a message stating that “[y]esterday, I was made aware of a current student’s Instagram posts pertaining to transgender people.” Battles acknowledges that “There are clear legal limitations to what a public university can do in response to objectionable speech.
As a result, there are few tools at our disposal to reduce the pain that such speech may cause.” However, the school then suspended Stevens.
A spokesperson is quoted by the Daily Wire declaring students must follow the “professional standards” of their chosen field by acting and behaving in ways that “may differ from their personal predilections.”
That does not sound like an accommodation of the First Amendment, which protects your right to express your “personal predilections.” Many object to his view of transgender persons, but it is a view that often expresses a myriad of religious, political, social, and biological beliefs.
The suspension letter reportedly states:
You continue to maintain, “I do not recognize the gender that they claim to be if they are not biologically that gender.”
This public position is in conflict with the Dignity for All Students Act requiring teachers to maintain a classroom environment protecting the mental and emotional well-being of all students.
The question is whether holding such beliefs means that Smith is incapable of maintaining a classroom that is respectful and protective of all students, including transgender students. We have previously discussed professors who express animosity toward white students, males, or conservatives but few have been subject to suspension or termination unless they manifest such bias or prejudice in classrooms or on campus. (See stories here, here, here, here, and here) I have long opposed discipline for teachers for their expression of political or social views outside of schools. Indeed, as we have previously discussed, one professor called for more Trump supporters to be killed. Another called for strangling police. Rhode Island Professor Erik Loomis, who writes for the site Lawyers, Guns, and Money, said he saw “nothing wrong” with the killing of a conservative protester — a view defended by other academics. Yet, recently a professor was suspended for writing against reparations. The result seems like a sharp divergent treatment based on the content of views on the left or the right of the political spectrum in the treatment of faculty members.
The spokesperson told the site that “SUNY Geneseo respects every student’s right to freedom of speech and expression,” but “[b]y choosing to enter into certain professional fields, students agree to abide by the professional standards of their chosen field. At times, these professional standards dictate that students act and behave in certain ways that may differ from their personal predilections.”
Yet, Smith is not saying that he would apply his views in classrooms or refuse to comply with “professional standards.” Instead, the school seems to be saying that one of those professional standards is conforming your views (or at least your public statements) to the accepted views of a “chosen field.” That would seem like the abridgment of free speech.
Again, we do not have to agree with Smith to support his right to speak freely. We often support the free speech rights of individuals who espouse views that we find offensive or even grotesque. You cannot say that you are in favor of free speech so long as you do not use it in a way that we do not like. It is hard to see any limiting principle in the position of SUNY-Geneseo. It would mean that the “chosen field” of any student could limit their ability to speak out on issues in their private lives. The alternative is to enforce “professional standards” by requiring adherence to those standards in the professional setting.
The school may be looking at a substantial free speech challenge in this case and we will continue to follow it.