A ‘Policy Violation’ or Free Speech?

In August, an Indiana University official told faculty leaders who defended a colleague and spoke out against a near-total proposed state abortion ban that they had committed a policy violation.

Colin Johnson, a tenured associate professor and president-elect of the IU at Bloomington Faculty Council, signed the letter.

Johnson told Inside Higher Ed that when there may be tensions between academic freedom and the benefits of erring on the side of caution concerning matters of public commentary and university operations, “historically, those tensions would have been resolved in the favor of defending academic freedom and they should be—period.”

“Academic freedom and both the responsibilities and affordances that it entails is all about erring on the side of creating space for people to say things that they believe are of genuine importance,” he said, “both in a scholarly sense and in the sense of us having some obligation to contribute to public discussion and debate about the state of the society in which we live, and not in a partisan sense but in a scholarly sense.”

An IU spokeswoman wrote in an email to Inside Higher Ed that IU's policies "reflect our commitment to protecting the academic freedom of our faculty; the First Amendment rights of our faculty and staff; and the integrity and public trust in Indiana University as a public research institution. The university applies policies as they exist and welcomes discussion about policy revisions should they be warranted. While the university received and responded to formal complaints following a message sent by seven faculty leaders to the Bloomington faculty list serve [sic], no disciplinary action was taken in this case."

On Friday, Steve Sanders, an IU at Bloomington law professor, published an article revealing the situation and providing his legal analysis on it.

Five Indiana University faculty leaders, plus one past Faculty Council president and one president-elect, signed the letter, which was addressed to students, staff and faculty. The letter, which Sanders provided, also defended Dr. Caitlin Bernard, the IU assistant professor who provided an abortion to a 10-year-old Ohioan after Ohio quickly banned abortion after six weeks.

That story gained national attention in the weeks following the U.S. Supreme Court’s overturning of Roe v. Wade. Bernard’s sharing of that story elicited backlash from Indiana attorney general Todd Rokita.

“As elected leaders of our respective Indiana University campuses and the university as whole, we are professionally and ethically obligated to concern ourselves with a broad range of issues,” wrote the faculty leaders. They included, among others, the presidents of the Bloomington, Northwest and South Bend campus faculty bodies.

“During the McCarthy era, too many Americans sat idly by and allowed the illusory safety and expedience of silence to compromise their willingness to say and do what was right,” they wrote. “We will not make the same mistake—both because the constituents we represent have demanded that we give public voice to their concerns and their outrage over Attorney General Rokita’s scurrilous attacks on our colleague, Dr. Bernard, and because our sense of conscience will not allow it.

“With these obligations in mind, we call upon the members of the Indiana General Assembly to reconsider carefully the potentially damaging consequences of the extreme proposed legislation they are currently considering. We also call on Attorney General Rokita to cease his abusive and utterly irresponsible attacks on Dr. Caitlin Bernard.”

On the same day the faculty leaders sent their letter, the Indiana General Assembly finished passing the ban and Governor Eric Holcomb, a Republican, signed it into law.

An IU official responded to the letter on Aug. 31, calling it a policy violation that could lead to discipline, according to another letter that Sanders provided.

“The email stated a public policy position on the debate surrounding abortion rights in the state of Indiana,” wrote Mike Jenson, who is now IU’s associate vice president, chief compliance and policy officer.

“The email generated complaints to multiple units at Indiana University regarding the propriety of the message in light of University Policy GR-01: Contact With State Officials, Federal Officials and Political Campaigns, and other Political Activities,” he wrote. “After reviewing the message and the policy in conjunction with other university officials, I write to inform you that the message as drafted does in fact violate the policy.”

The policy Jenson cited says, in part, that “personal activities must not prevent the full discharge of an employee’s staff or academic responsibilities. Likewise, all IU community members are expected at all times to distinguish between when they speak, write or act in their personal capacity (including when they speak, write or act on behalf of professional societies and other organizations) and when they speak, write or act on behalf of the university’s interests.”

“There was no subsequent clarification that you were expressing a personal opinion, which led a number of your colleagues to believe that this was the stated position of Indiana University,” Jenson then wrote. “The content of the email was not approved by any university official with the authority to authorize it nor was it reviewed prior to its transmittal by any university official with the authority to authorize it.

“Although initiation of the formal disciplinary process is allowable for a violation of policy, I am instead reaching out to you to respectfully request that in the future, when speaking or writing publicly about matters of partisan political activities or matters of public policy that you make perfectly clear that you are expressing your own personal opinion and not that of IU.”

“No one disagrees that an employee shouldn’t use IU email to advance a political cause that has nothing to do with the university,” Sanders wrote in his article on the situation. “But it is a different matter when faculty speak on matters of public concern directly connected to IU’s welfare, or as experts qualified to provide analysis and commentary on a specific subject. Such faculty should be protected by academic freedom and thus should be able to use the normal resources of their jobs.”

He wrote that “they used IU email for business related to their official responsibilities. And discussing the implications of a public-policy issue for IU is not inappropriate political communication and does not endanger IU’s tax-exempt status.”

Mark Criley, senior program officer in the American Association of University Professors’ Department of Academic Freedom, Tenure and Governance, said, “Faculty members speaking out on that kind of question as individuals or elected representatives of their respective faculties, especially where that issue concerns matters that are of grave importance to faculty at the institution, we would consider those to be the kind of things that faculty members ought to be able to speak on without fear of discipline or prior restraint.

“It seems to me this is a case where they’re speaking out of concern on an issue of both public and institutional significance,” he said. “Just in general this is an unwelcome trend of wanting to constrain faculty members’ remarks on controversial public matters.”

Joshua T. Bleisch, a lawyer with the Foundation for Individual Rights and Expression’s Faculty Legal Defense Fund, said, “It’s highly unusual that faculty speech on these issues, even where they’re using their titles or university email, would be mistaken for ‘university speech.’ But administrators’ actions here creating ambiguity on that point and adding threats of discipline create a chilling effect on faculty speech.”

“IU won’t lose their tax-exempt status if faculty exercise their First Amendment rights,” he wrote. “On the other hand, they do open themselves up to legal liability when they suggest faculty may be punished for speaking out on political issues of the day.”