Kentucky professor argues university violated First Amendment rights

On Tuesday, attorneys for a Kentucky professor argued before the 6th U.S. Circuit Court of Appeals that University of Louisville officials violated his First Amendment rights by firing him over remarks he made on gender dysphoria.

Allan Josephson’s conflict with officials began after he participated in a panel discussion for the Heritage Foundation in Washington, D.C., in 2017. He spoke on treatment approaches for youth experiencing gender dysphoria, urging that the issue is a social-cultural, psychological phenomenon that can’t be fully treated with drugs and surgery. At the time of the event, Josephson worked as the division chief of the University of Louisville’s Division of Child and Adolescent Psychiatry and Psychology.

Seven weeks after his presentation, the university demoted Josephson’s role to junior faculty member. Officials claimed the job change stemmed from numerous faculty members’ disagreement with Josephson’s management approach to children with gender dysphoria.

According to Josephson, school officials kept harassing Josephson by banning him from staff meetings, barring him from seeing patients who identify as LGBTQ, removing trainees from him, and taking away his teaching duties.

Josephson had worked at the school since 2003 and had earned perfect annual review marks in 2014, 2015, and 2016. In February 2019, officials fired Josephson by not renewing his contract for the following year, citing a slump in productivity. Josephson’s lawsuit states that his productivity slumped briefly but rebounded. Other faculty members with similar results were not disciplined, Josephson said.

Josephson then sued the school in March 2019, alleging that the university officials retaliated against his constitutionally protected speech. In March 2023, a federal district court ruled that a jury should hear the case. University officials appealed the case to the 6th Circuit.

On Tuesday, the court heard oral arguments and the three-judge panel heavily questioned the officials’ side. Attorney Jeremy Rogers, representing the university officials, opened by arguing that they should be immune from going to trial as they work for the state.

Judge Richard Griffin interrupted Rogers to ask if the university required Josephson to join the discussion for the Heritage Foundation and if Josephson’s participation at the event was in any way tied to his university duties. Rogers said it wasn’t. Griffin noted that, “If [Josephson] speaks as a private citizen, he has a First Amendment right, does he not?”

Travis Barham, senior counsel at Alliance Defending Freedom, which represents Josephson, argued that university officials retaliated against Josephson and created a hostile work environment because of words he said off campus. “All of a sudden, [Josephson’s] career trajectory radically changed, and that was because a few faculty members did not like the views he expressed on his own time, hundreds of miles from campus, on a hotly contested issue,” Barham said.

But Rogers, arguing for the school, claimed the legal evidence tying the university officials to the hostile work environment doesn’t exist.

Reflecting on the arguments, Barham said he’s “very pleased” with how they went. He noted that the judges’ questions highlighted key issues in the case.

The judges remarked that many of the factual issues in the case are questions for a jury. ADF’s goal is for the 6th Circuit to rule in favor of Josephson so the case can go back to the district court to be heard by a jury, Barham said. Ultimately, Josephson is seeking damages and to be reinstated to his position as a faculty member at the university.

Professors can’t be punished simply for the views they express, Barham said. For decades, courts have recognized the free speech rights of faculty members. The university officials are arguing that Josephson had limited speech off campus — something no court has ever accepted.

This isn’t the first time ADF has argued on behalf of faculty member’s free speech rights regarding gender-identity, Barham said.

In 2021, the 6th Circuit ruled in favor of a philosophy professor who declined to use students’ preferred pronouns. Officials from Shawnee State University in Ohio punished and threatened the professor for his actions.

In 2019, a high school music teacher from Indiana sued the Brownsburg School District for forcing him to resign and violating his religious rights. District officials created a mandate requiring all teachers to use students’ preferred pronouns and names, which went against the teacher’s religious convictions. The case is still ongoing in the 7th U.S. Circuit Court of Appeals.

If the court doesn’t recognize Josephson’s rights in the current case, it could have broad implications for faculty across the country, Barham added. The ruling could limit a variety of speech by professors on and off campus.

“People should be able to speak without fear of censorship, without fear of subsequent punishment, especially in our public universities,” Barham said “And if that matters anywhere, it matters in academic medicine.”