By Casey Smith
Indiana Capital Chronicle
INDIANA — A federal lawsuit filed Tuesday, May 7, challenges a contentious new Indiana law that seeks to push speech and course content in college classrooms toward “intellectual diversity.”
The litigation lodged by the American Civil Liberties Union of Indiana asserts that Senate Enrolled Act 202 violates the First and Fourteenth Amendments of the U.S. Constitution. The measure was adopted by the General Assembly and signed into law by Gov. Eric Holcomb in March.
The law requires all Indiana public colleges and universities institute policies that chill the speech of or compel speech from faculty members, a news release alleged.
The suit was filed on behalf of two professors at Purdue University Fort Wayne. Steven A. Carr is a professor of communication and the director of the Institute for Holocaust and Genocide Studies. David G. Schuster is an associate professor in the history department.
The ACLU of Indiana said Purdue University is the named defendant because the state institution is mandated to enforce the allegedly unconstitutional provisions of the law.
“Although Professors Carr and Schuster both already seek to foster a culture of free inquiry in their classrooms, this does not mean that they believe it is appropriate to provide equal time or attention to all lines of questioning,” the lawsuit said. “They exercise their judgment and academic freedom to determine when further inquiry on a subject is no longer desirable or appropriate, and they have no way of knowing whether this type of in-the-moment-decision-making will subject them to discipline or other employment consequences.”
Professors ‘Fearful’ Of The Law’s Penalties
The law in question states professors must be disciplined if they fail to “foster a culture of free inquiry, free expression, and intellectual diversity” and “expose students to scholarly works from a variety of political or ideological frameworks.”
Both plaintiffs assert in the lawsuit that they could be “compelled to speak or prohibited from speaking,” in violation of their First Amendment rights, or risk adverse employment actions — including not being promoted, having their tenure revoked, or facing discipline up to and including termination.
The ACLU of Indiana indicated the professors are concerned the law could require public college and university faculty to give “debunked” theories equal time in their classrooms alongside “rigorously studied academic analysis.”
The lawsuit provides specific examples of course content of concern to the two professors.
As part of his courses examining United States history in the post-civil war period, Schuster teaches about the “culture wars” surrounding the LGBTQ rights movement in the 1990s, according to the lawsuit.
“(Schuster) is aware that some academics teach about this movement as embodying the rise of a ‘homosexual agenda,’ during which, according to them, LGBTQ people were attempting to indoctrinate students and others with ideas about homosexuality,” the complaint said. Schuster does not believe that “divergent perspective” is accurate, however, and instead maintains that teaching such a perspective “would be harmful to his students.”
Schuster additionally teaches about slavery and its legacy. The lawsuit claims the professor does not believe he should be required to teach any number of “divergent” scholarly perspectives on that subject, either — including that slavery “ultimately benefited African American people,” which was once a dominant view among academics in that field.
Carr separately teaches about the Holocaust through his work at the Institute.
The lawsuit emphasizes that “divergent perspectives regarding the existence and scope of the Holocaust exist,” ranging from denial that the Holocaust occurred, to “revisionist” accounts challenging the scope and causes of the genocide.
Another example referenced in the lawsuit describes a course recently taught by Carr about the eugenics movement — including study of legislation involving forced sterilization passed in Indiana in 1907.
The suit seeks to block the “unconstitutional” portions of the statute to protect the free speech rights of the two professors before the law is set to take effect on July 1.
“SEA 202 puts Indiana’s professors in an untenable position. Through vague language and the threat of harsh sanctions, including termination, the law strips professors of the academic freedom that the Supreme Court has long recognized they have the right to exercise,” said ACLU of Indiana attorney Stevie Pactor in a written statement. “No professor should have to choose between their employment and their First Amendment rights.”
What’s In The New Law?
Senate Enrolled Act 202, one of this year’s most debated higher education bills — was touted by GOP lawmakers as a way to increase “intellectual diversity” in publicly funded college classrooms.
Although faculty and students overwhelmingly contended the proposal would micromanage their institutions and have a “chilling effect” on free expression, the governor signed the bill into law, saying it “requires free inquiry and civil discourse programming for new students, strongly encourages academic freedom and protects faculty to express differing viewpoints from their colleagues and university leadership.”
The law makes changes to the institutions’ diversity-oriented positions and their policies for tenure, contract renewals, performance reviews and more. It also establishes new reporting and survey requirements based on “free inquiry, free expression, and intellectual diversity.”
Now, Indiana is additionally one of a handful of states that requires boards of trustees to establish diversity committees on campuses.
Under the new law, those diversity committees must make recommendations promoting recruitment and retention of “underrepresented” students rather than the “minority students” specified in current law.
Senate Enrolled Act 202 requires a five-year review process for Hoosier education institutions, as well. Even so, many Hoosier institutions already have some level of review for tenure of faculty members.
The law further requires institutions to establish complaint procedures in which school students and staff can accuse faculty members and contractors of not meeting free-expression criteria. Institutions will have to refer those complaints to human resource professionals and supervisors “for consideration in employee reviews and tenure and promotion decisions,” according to the law. In limited circumstances, complaints could be advanced to the Indiana Commission for Higher Education.
