Federal court dismisses ACLU lawsuit against Purdue, IU

A federal court dismissed an American Civil Liberties-led lawsuit against Purdue and Indiana University earlier this month after the judge ruled that the ACLU lacked standing to sue the universities.

The ACLU filed the lawsuit in May over S.E.A. 202, a state law passed earlier this year that designates university boards of trustees as the judges of “cultural and intellectual diversity” in public universities across Indiana.

Under the law, professors are required to teach material “from a variety of political and ideological frameworks,” according to the bill. Those that fail to meet the standard and are found to not “foster a culture of free inquiry, free expression and intellectual diversity within the institution” could potentially have their tenure appointments restricted by their university’s boards of trustees.

In its lawsuit, the ACLU claimed Purdue and IU’s implementation of the law, whereby the boards of trustees would review the curriculum taught by the universities’ professors, would violate faculty members’ First Amendment rights.

Until the universities actually begin implementing requirements for professors under S.E.A. 202, the ACLU won’t have grounds to sue Purdue and IU over the law, IU law professor Steve Sanders told the Exponent.

Senior Judge Sarah Evans Barker of the U.S. District Court of Southern Indiana ruled the same, dismissing the case on Aug. 14. But Sanders said this might not be the end of the battle.

“Sooner or later, somebody is going to have standing,” he said. “They will have been demoted or had some disciplinary action taken against them, and they will indisputably have standing. Then they can come back to court and say their First Amendment rights have been violated.”

S.E.A. 202 and pushback

S.E.A. 202 got its start in the Indiana senate in February as S.B. 202, but faced immediate pushback from professors and civil rights groups across the state, who condemned the intermingling of politics and higher education.

In a Purdue University Senate meeting on Feb. 19, professors called out what they called President Mung Chiang and Provost Patrick J. Wolfe’s “cowardly responses” during a discussion of the bill, while faculty from both Purdue and IU testified in the Indiana legislature in opposition to the bill.

Critics of S.B. 202, which is now state law, argued that the bill would restrict professors’ ability to teach material that wasn’t approved by university’s boards of trustees, who would become final arbiters of curricula and may be motivated by self-interest.

At the time, Purdue political science professor emeritus Harry Targ told the Exponent the bill would bring a “grinding halt” to any semblance of academic freedom at Indiana universities, bringing back the “McCarthy period.”

“Politicians, their allies among boards of trustees and their advisers in think tanks and political organizations, have used contemporary economic and political shocks to demand greater control over teaching and research,” Targ said.

Lawmakers, too, criticized the bill, warning it would drive faculty away from Indiana universities by swerving into government overreach.

“In many ways, this bill acts as the proverbial thought police,” Democratic West Lafayette Rep. Chris Campbell said in a press release following the passage of the bill in the House Chamber. “Individual faculty should be judged by the standards of their field, not by a particular student or board member who believes they fail an ideological litmus test.”

Still, the bill’s proponents argued S.B. 202 would expand freedom of speech in university classrooms and ensure that professors were teaching a variety of viewpoints, with trustees overseeing the process.

Universities, AG differ on defense

The ACLU opened its lawsuit against Purdue and IU when S.B. 202 was passed into law by the end of February, arguing that the universities’ trustees would be infringing on professors’ rights by enforcing the new law.

Soon after litigation began, Sanders said, Indiana Attorney General Todd Rokita intervened in the case, jumping to the defense of the universities and signing on as a co-defendant.

Rokita, a staunch defender of S.E.A. 202, joined the defense team as a “political activist,” Sanders said, but differed from the universities on how to approach the case.

”Rokita, under federal civil procedure, gets to intervene in the case because it’s a state law being challenged,” he said. “The lawyers were interested in getting (the universities) out of the lawsuit as quickly as possible, but Rokita is fighting other battles.”

Purdue spokesperson Trevor Peters told the Exponent that Purdue was only interested in arguing the ACLU’s lawsuit had no standing, which the judge ultimately agreed with. But Rokita went further, arguing S.E.A. 202 could not infringe of professors’ First Amendment rights because professors didn’t have free speech to begin with.

In briefs filed with the court, which Purdue and IU initially signed onto, the attorney general argued anything said or taught by professors in classrooms counted as “government speech,” and the state, through S.E.A. 202, had the right to control professors’ curriculum.

”For the state to be making this argument that (professors) can’t complain because they don’t have any First Amendment rights in the classroom,” Sanders said, “it aims to neutralize the possibility that professors can challenge anything that the state wants to do related to controlling the college classroom.”

Sanders said Rokita’s argument may hold water, as the Supreme Court has ruled similarly about curricula taught in K-12 classrooms. But that ruling has yet to be extended to higher education, he said, which is the “direction Rokita wants to push it.”

Despite initially signing onto the attorney general’s “government speech” argument, Purdue and IU backtracked three days later, filing a separate brief maintaining they only saw the ACLU’s lawsuit as premature — not that professors have no First Amendment rights.

”To be clear, Purdue never took a position on the merits of the plaintiffs’ case, instead opting to make a procedural argument that the claims were not ripe, and thus the court did not have jurisdiction,” Peters wrote in an email to the Exponent. “Purdue never wavered in its commitment to academic freedom and faculty tenure.”

In April, in the face of pushback from faculty over S.E.A. 202, Purdue’s trustees voted to affirm a “commitment to academic freedom and tenure,” according to a Purdue press release.

”Trustees voted to delegate certain authority to develop plans for compliance with the requirements of Senate Enrolled Act 202,” the university announced. “Following this exercise, and as has long been true in granting tenure at Purdue, only very rarely will a review be directly assessed by the board of trustees.”

It’s unclear, then, why Purdue initially signed onto Rokita’s arguments, Sanders said. But it could just be “sloppy lawyering,” he speculated.

In the lawsuit, Purdue and IU were defended by the same law firm, Barnes & Thornburg, who may have let Rokita “take the lead” in the case, Sanders said, without checking the universities’ arguments against Rokita’s.

”I think a lot of lawyers who litigate just assume that nobody other than the opposing counsel and the judge is ever going to read their legal briefs, so what they say isn’t going to come to public light,” he said. “They think they don’t have to tip-toe, necessarily. You let your lawyers say things in a brief that are kind of good for your position, and you just assume nobody’s going to really find out about them anyway.”

Still, the judge finally ruled to dismiss the case on the basis of the universities’ arguments, not Rokita’s.

”I think this will, just in a sense, kick the can down the road,” Sanders said.