Indiana Professors Lack Standing to Challenge Indiana "Intellectual Diversity" Statute
Reason · RC · trust 32/100
Some excerpts from yesterday's longish McDonald v. Trustees of Indiana Univ. , written by Seventh Circuit Judge Joshua Kolar and joined by Judges Frank Easterbrook and Doris Pryor:
Senate Enrolled Act 202 added a provision to Indiana's education code titled "The Protection of Free Inquiry, Free Expression, and Intellectual Diversity." ... [The Act's] "promotion provision" ... requires universities to establish a policy "that a faculty member may not be granted tenure or a promotion" if the university determines the faculty member is:
(1) unlikely to foster a culture of free inquiry, free expression, and intellectual diversity within the institution;
(3) likely, while performing teaching duties within the scope of the faculty member's employment, to subject students to political or ideological views and opinions that are unrelated to the faculty member's academic discipline or assigned course of instruction....
[The Act's] "review provision" ... requires a university to review tenured faculty every five years to determine whether they have met certain criteria. These criteria include "whether the faculty member" has:
(1) Helped the institution foster a culture of free inquiry, free expression, and intellectual diversity within the institution.
(2) Introduced students to scholarly works from a variety of political or ideological frameworks that may exist within the [university's] curricula[.]
(3) While performing teaching duties within the scope of the faculty member's employment, refrained from subjecting students to views and opinions concerning matters not related to the faculty member's academic discipline or assigned course of instruction.
The act defines some but not all of the key terms in these provisions. "Faculty member" means "an employee of an institution whose employment duties include teaching students of the institution." And "[i]ntellectual diversity" means "multiple, divergent, and varied scholarly perspectives on an extensive range of public policy issues." But the act does not define "free inquiry" or "free expression."
The act also mandates that state-run universities give the required policies teeth. To enforce the review provision, any such university must "adopt a policy that establishes disciplinary actions" it will take if it "determines ... that a tenured faculty member has failed" to meet one or more of the provision's requirements. Such disciplinary actions must include: "(1) termination; (2) demotion; (3) salary reduction; (4) other disciplinary action as determined by the institution; or (5) any combination of" these actions. A university must also create a procedure for students and staff to lodge a complaint when any faculty member (irrespective of tenure) "is not meeting the criteria described in" the review provision. And it must refer these complaints to "appropriate human resource professionals and supervisors for consideration in employee reviews and tenure and promotion decisions."
The act cabins the promotion and review provisions in a few ways. It says a university "may not consider the following actions by a faculty member" when enforcing either provision:
(1) Expressing dissent or engaging in research or public commentary on subjects.
(2) Criticizing the institution's leadership.
(3) Engaging in any political activity conducted outside the faculty member's teaching or mentoring duties at the institution.
And the act says it "may [not] be construed" to "[l]imit or restrict the academic freedom of faculty members or prevent faculty members from teaching, researching, or writing publications about diversity, equity, and inclusion or other topics." ...
The State argues that ... [b]ecause the act only indirectly affects professors, the professors cannot show a credible threat of enforcement or an objectively reasonable chilling effect on their speech. So even if the professors actually fear the act will be enforced against them, the State calls this fear unreasonable.
But the professors do not lack standing merely because the act applies to them indirectly. "[G]overnmental action may be subject to constitutional challenge even though it has only an indirect effect on the exercise of First Amendment rights." The act mandates that universities adopt certain policies that in turn must be applied to the professors when they seek promotion or when a university reviews their performance. Here the State cannot insulate itself from constitutional claims by acting through a proxy, especially when that proxy is itself an arm of the State....
The record does not show a credible threat of enforcement or an objectively reasonable chilling effect on their speech. We cannot discern how the act or policies compel the professors to self-censor as they did, or how the act or policies create a credible threat of enforcement.
The professors argue that the act and policies have curbed their protected academic speech, forcing them to: alter the readings they assign and discuss; restrict the content they present in class; and restructure their courses. But nothing on the books commands the professors to do anything concrete, including adopting these changes.
The act mandates that the universities adopt and enforce certain general policies. It leaves to the universities filling out the details and, ultimately, judging whether faculty have complied. The policies adopted so far merely reflect the act's general requirements; they do not reveal whether or to what extent the professors' uncensored speech would violate the act or policies.
Take, for example, Professor Scheurich's assertion that he taught a book he would not otherwise teach—one he deemed "bad scholarship"—to avoid punishment. He asserts the act and policies required this change.
But he does not (and we cannot) connect this change to a concrete mandate in the act or policies. The act and policies require faculty to teach "divergent" and "scholarly" perspectives. But they do not define "divergent"…
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