The Office of the Indiana Attorney General moved to dismiss a case challenging a new law requiring “intellectual diversity” at universities. Photo from Getty Images.

By Whitney Downard and Casey Smith
Indiana Capital Chronicle

INDIANA — The Office of the Indiana Attorney General this week argued a federal judge should dismiss a lawsuit led by university professors and the American Civil Liberties Union of Indiana challenging a state law requiring “intellectual diversity” in the classroom.

The plaintiffs assert that Senate Enrolled Act 202 violates the First and Fourteenth Amendments of the U.S. Constitution. The measure was adopted by the General Assembly over concerns that conservative viewpoints were being stifled on campuses and signed into law by Gov. Eric Holcomb in March.

“To protect Indiana students in the classroom, our office this week filed additional arguments to dismiss a lawsuit by four professors who say they should not have to provide a classroom environment of free inquiry, free expression, and intellectual diversity,” Indiana Attorney General Todd Rokita said in an email. “The manufactured fears put forth in yet another illegit lawsuit by the ACLU don’t lack imagination, but the professors do lack standing to even bring this action. Our office will continue to defend in court this new law, which enables students to engage in free inquiry and ensures state universities foster diversity of thought.”

The office filed as an intervenor. The defendants in the case are the boards of trustees as higher education institutions who will be compelled to enforce 202’s provisions by law. They also joined Rokita’s office in the latest filing.

202 Background

As summarized in a June filing, 202 “requires that faculty members be denied tenure or promotion, and threatens them with discipline through and including termination, if they are deemed “unlikely” to “foster a culture of free inquiry, free expression, and intellectual diversity” within their institution, or if they are deemed to have failed to foster such cultures in the past.”

Additionally, 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.

The ACLU and professors filed the federal lawsuit in May 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.

Since then, two other professors have joined the suit — James Scheurich is a tenured faculty member at Indiana University Indianapolis and David McDonald is a tenured faculty member at Indiana University Bloomington.

Plaintiffs raised concerns that the law would have a chilling effect on their free speech and require them to devote equal teaching time to “debunked” theories alongside “rigorously studied academic analysis.”

“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 May statement. “No professor should have to choose between their employment and their First Amendment rights.”

The Filing From The Attorney General

Through June and July, the parties and Attorney General’s Office wrestled over a motion for a preliminary injunction that would block the law from taking effect. The judge has not ruled on that issue.

Monday’s filing pushes the court to dismiss because  harm hasn’t yet occurred, asserting that “Plaintiffs attempt to manufacture an injury by pointing to self-inflicted wounds.”

“They base their claims on fears about misapplications that have not yet come to pass of university policies that have not yet been enforced,” the brief continued. “Those speculative injuries, in turn, are not even traceable to the law Plaintiffs seeks to have facially enjoined.”

In the initial filing from plaintiffs, the history professors worried they would be required to teach about proof of Holocaust denialism, for example, or evidence related to Indiana’s own eugenics movement that promoted forced sterilization of minority populations.

But the Attorney General’s Office argues that such fears don’t meet the bar for being “actual and well-founded,” as set by legal precedent and that the existence of 202 alone isn’t enough to provide standing.

“Perhaps recognizing that the mere-existence rule cannot win the day, Plaintiffs instead speculate about hypothetical implications of the Act. Plaintiffs concede that they already aim to foster intellectual diversity and free expression … in other words, they already comply with the Act,” the filing read. “Without even a shred of evidence about what the Board of Trustees’ enforcement will look like, Plaintiffs cannot meet that standard. They can only hypothesize that the Board of Trustees will misapply the Act to the conduct they believe is already compliant.”

The boards, the filing argues, haven’t yet implemented the policies required by the act and so plaintiffs cannot claim harm.

The plaintiffs in the case said the result of the new law is that “some speech is being chilled, and some risks being compelled. This is occurring today, as the professors prepare for their courses to begin on August 19th (Purdue University) and August 26th (Indiana University), and will continue to apply to all of their teaching.”