Ryan Quinn at Inside Higher Ed:
In February, Republican lawmakers in Indiana passed a law saying public colleges and universities must deny tenure to professors who are “unlikely to foster … intellectual diversity.” The legislators left it to university trustees, many of whom are appointed by the governor, to determine what intellectual diversity actually means for faculty members and whether they have provided it.
Professors who earned tenure before the law’s passage aren’t spared from its implications. The statute says that whether they fostered intellectual diversity, and whether they “introduced students to scholarly works from a variety of political or ideological frameworks,” will now be considered in post-tenure reviews required every five years. A bad review could mean losing both tenure and employment.
In May, four faculty members from Indiana and Purdue university campuses sued to invalidate those parts of the law. The American Civil Liberties Union of Indiana, representing them, wrote in the lawsuit that these provisions impinge upon their First Amendment right to “academic freedom to determine the content of and deliver their instruction, free from interference by the State.”But Indiana’s attorney general, Republican Todd Rokita, argues that the professors have no such First Amendment right. In an echo of Florida’s ongoing defense of its own legislative attempts to regulate public university classrooms, Rokita’s office wrote in a brief to the federal court that “the classroom curriculum of a public university is government speech set in accordance with State law.”
“The curriculum used in state universities and instruction offered by state employees” is “state speech,” the attorney general’s office wrote, and “plaintiffs”— the professors—”have no right to control how the State speaks.”
The state says the professors are “claiming a brand new, state-university specific ‘First Amendment right to academic freedom.’”
That last line is one of the “gratuitous stupidities” in the attorney general’s brief, wrote Steve Sanders—an Indiana University at Bloomington law professor who’s not involved in the case—in an essay on Medium Friday. The U.S. Supreme Court recognized decades ago that the First Amendment protects public university professors’ academic freedom; in 1967, the majority found that academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”
