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On Wednesday, a judge dismissed a lawsuit that had sought to invalidate the parts of a new Indiana law requiring public colleges and universities to deny tenure to professors who are “unlikely to foster … intellectual diversity” and requiring post-tenure reviews that consider whether tenured professors have provided “intellectual diversity.”
The federal judge, Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana, didn’t rule on Indiana Attorney General Todd Rokita’s controversial argument in the case that public university professors’ classroom speech is government speech and that they lack First Amendment rights to academic freedom in their courses. Instead, Barker dismissed the case because she concluded that the professors who filed it lacked standing to sue, and their claims weren’t “ripe” for judgment.
A tenured professor who receives a poor post-tenure review could lose both tenure and employment under the GOP-backed law, Senate Enrolled Act (SEA) 202, which requires these reviews every five years. In May, four tenured faculty members from Indiana and Purdue university campuses, represented by the American Civil Liberties Union of Indiana, sued their universities to stop these post-tenure review and tenure-denial provisions.
Barker, in her ruling, noted that the professors say “they have already felt compelled to make changes to their syllabi in the form of their pre-emptive efforts to abide by SEA 202’s dictates.” But, quoting from another case, she wrote that “litigants ‘cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.’”
The judge noted that the universities hadn’t yet adopted policies implementing the law, which leaves it to university boards of trustees to define what “intellectual diversity” means. “Absent the formulation and enforcement of these final policies, it is impossible to determine whether [the professors] do in fact have an ‘objectively good reason for refraining from speaking and self-censoring instead,’” Barker wrote, citing another precedent.
The ACLU said it was disappointed by the decision. A staff attorney said no decision has been made yet on whether to appeal.
A spokesperson for the attorney general's office had a different reaction, saying in a statement: “As the court recognized in ruling for our office, the four professors who challenged SEA 202 lacked standing to even bring this action. We were proud to defend this new law, which enables students to engage in free inquiry and ensures state universities foster diversity of thought."
