INDIANAPOLIS — The American Civil Liberties Union of Indiana took action on Tuesday to try to block portions of Senate Enrolled Act 202.
In a press release sent Tuesday, the ACLU claimed SEA 202, which was signed into law by Indiana Gov. Eric Holcomb in March, violates the First and Fourteenth Amendments of the U.S. Constitution.
Previous reporting indicates SEA 202 limits public colleges and universities’ ability to grant tenure and promotions “if certain conditions related to free inquiry, free expression and intellectual diversity are not met.”
The bill also requires tenured faculty to submit to reviews every five years.
The reviews will assess whether or not instructors are exposing students to a variety of political or ideological frameworks that may exist within the academic discipline. Instructors could also be flagged during reviews if they are found to be subjecting students to views and opinions concerning matters that are not related to the academic discipline they are teaching.
SEA 202 includes language that requires Indiana’s colleges and universities to set up systems students and faculty can utilize to file complaints about instructors that aren’t complying with the law.
“Certainly the complaints process is described in the (lawsuit) as being part of the problem,” lead case attorney Stevie Pactor said during a virtual press conference on Tuesday. “Because what the complaints process explicitly does is allow any student or any other employee of one of these educational institutions to initiate a complaint against any faculty member. So, obviously that’s the mechanism by which these complaints or issues are likely to arise.”
The lawsuit claims SEA 202 requires public institutions of higher education to adopt policy that establishes disciplinary action for faculty members that do not meet benchmarks set by the law. The complaint, which was filed on behalf of two Purdue Fort Wayne faculty members, also indicates that the punishment instructors could face under SEA 202 ranges from termination to demotion to salary reduction.
The suit also asserts that SEA 202’s language is vague. Per the complaint, statutory terms like “free inquiry” and “free expression” are not defined in SEA 202.
The lawsuit alleges that the only defined language in SEA 202 is the term “intellectual diversity,” which is described as “multiple divergent and varied scholarly perspectives on an extensive range of public policy issues.”
The press release the ACLU sent FOX59 and CBS4 to announce the lawsuit claims SEA 202 requires colleges and universities in Indiana to “chill the speech of or compel speech from faculty members.”
Purdue Fort Wayne Professor of Communication Steven Carr and Associate Professor of History David Schuster were the plaintiffs named in the lawsuit.
Carr advises graduate students, is director of the Institute for Holocaust and Genocide Studies and will teach four courses in the 2024-25 academic year. Schuster will teach six courses next year. Both Carr and Schuster have tenure at Purdue Fort Wayne.
“Neither Professor Carr, nor Professor Schuster knows what it means to ‘foster a culture of free inquiry, free expression and intellectual diversity within in the institution.’ The plaintiffs therefore cannot discern what they are required to do or refrain from doing to avoid running afoul of the statute.”
The lawsuit provides numerous examples of how SEA 202’s ambiguity would impact the manner in which Carr and Schuster teach at Purdue Fort Wayne.
In one example, Schuster considered whether or not he would have to teach “divergent scholarly perspectives” pertaining to slavery. Schuster asserted that one divergent perspective — which was once popular in his field of research — contends that slavery ultimately benefitted African-American people.
The lawsuit claims that, if Schuster adds information about that perspective to his curriculum, the effects could be potentially harmful.
Another example the lawsuit provided regarded whether or not presenting differing opinions on the Holocaust would be required of faculty at colleges and universities. Carr indicated that some differing opinions include “revisionist accounts challenging the scope and causes of the genocide.” Other dissenting takes on the topic include outright denial that the Holocaust ever happened, per Carr and the lawsuit.
The complaint also argues that the examples Carr and Schuster brought up are “illustrative as to the First Amendment consequences of (SEA 202).”
The lawsuit also indicates that Carr and Schuster believe they could be subject to disciplinary action if they continue to teach the same way they have for years. Carr and Schuster also contend the First Amendment should allow them to retain their academic freedom to determine the content they use for instruction.
Per a release, the lawsuit aims to block “unconstitutional portions” of the statute before it takes effect on July 1.
“SEA 202 puts Indiana’s professors in an untenable position,” the ACLU wrote in a press release. “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.
No professor should have to choose between their employment and their First Amendment rights.”
The lawsuit lists the trustees of Purdue University as the defendants. Pactor said the trustees are the suit’s defendants because they will be the ones that enforce SEA 202.
“Every statute that requires a state actor to take some action has a specific enforcement mechanism,” Pactor said. “And the way that this type of civil rights litigation works is, you have to sue the entity that’s responsible for enforcing the law.
“Here, the statute requires that universities and colleges be the enforcers of the law. So, in this case, because Professors Carr and Schuster are faculty members at Purdue, Purdue is, at least nominally, the defendant, even though it is pretty clear that this is a statewide law that is likely to be defended by the state and by the Attorney General’s Office when the time comes.”
