Litigation over Indiana’s relatively new intellectual diversity bill is in full swing as faculty at state institutions of higher education in Indiana still find themselves struggling to navigate the act’s requirements.
Passed in March 2024, Senate Enrolled Act 202 includes a ban on mandatory DEI statements in hiring, promotion and admissions decisions.
It also includes a requirement that boards of trustees enact policies requiring faculty to foster free inquiry, free expression, and intellectual diversity in their classrooms. Under the act, faculty who fail to do so may incur such penalties as termination or denial of tenure.
Since being signed into law, the legislation has been criticized by groups such as the ACLU of Indiana, as well as the classically liberal Heterodox Academy, over its alleged vagueness and violations of the First Amendment.
“Certain parts of the statute require [faculty] to affirmatively do things that they wouldn’t otherwise do,” said Stevie Pactor, a lawyer with the ACLU in Indiana, in a recent telephone interview with The College Fix. “So that’s a compulsion problem.”
“It also chills their speech because it threatens punishment for certain speech that [faculty] might otherwise make,” she added.
“Then it’s also a problem when it comes to…its vagueness and its overbreadth,” she said. “It is very difficult to figure out how one is supposed to comply with this statute from the perspective of a professor.”
Pactor also highlighted what she said she believed to be one of the more unsettling aspects of the legal battles over S.E.A. 202, which is that in a previous lawsuit over the act, the state contended that the speech of professors at state colleges and universities constitutes government speech and is therefore not protected by the First Amendment.
The ACLU-IN initially filed a lawsuit in May 2024 against the trustees of Purdue University as a means to challenge the law, but the lawsuit was dismissed in August without prejudice over the summer due to questions of standing.
“Standing is determined on the day that the lawsuit is filed and then has to be maintained throughout the lawsuit,” Pactor told The Fix.
At the time when lawsuit was filed, she noted, the policies at the center of the lawsuit had yet to take effect even though it was understood that they would in the months to come.
Subsequently, in September 2024, after the relevant policies took effect at Purdue University, Fort Wayne and Indiana University, the ACLU-IN filed a new pair of lawsuits against the trustees of Purdue University and Indiana University. Since then, Pactor said, the cases have been consolidated.
The College Fix reached out via email to both Purdue University, Fort Wayne and Indiana University for comment but did not receive a reply.
Plaintiffs in the cases include Steven Alan Carr and David Schuster of Purdue University in Fort Wayne, David McDonald of IU Bloomington, and James Scheurich of IU Indianapolis.
Collectively, their academic activities touch upon a variety of potentially contentious topics including eugenics, slavery, the Holocaust, DEI in the educational system, and the conflict between Israel and Palestine.
To highlight the position these professors may find themselves in, the ACLU-IN’s Purdue lawsuit notes how Carr, who serves as director of the Institute for Holocaust and Genocide Studies at Purdue and promotes teaching and research about the Holocaust, could be required to teach “‘Divergent’ perspectives regarding the existence and scope of the Holocaust” to remain in compliance with the law.
When asked about the legitimacy of such concerns in a January telephone interview with The College Fix, Joe Cohn, the Heterodox Academy’s director of policy, said if you read the bill literally, it does not make any exceptions for contexts in which teaching divergent views would be absurd.
“It says you’re going to [be] evaluated on whether or not you’re exposing students to the various different views that are out there,” Cohn said.
“In that way…your responsibility as a professor would be [to] expose students to ideas as if it’s a relativist buffet without any filtering out process,” he said.
Yet, Cohn noted, he does not wish to “bash” the lawmakers behind the act, stating he believes “S.E.A. 202 was offered in good faith to tackle what is a serious problem and one that is not the simplest to solve.”
“It’s good when legislators are thinking about how to promote open inquiry on campuses and how viewpoint diversity…is part of that process,” he said.
“We thought that this legislation had some positive aspects that we’re pleased to see, but just got some of the details wrong,” Cohn added.
Although Cohn said he does not believe arguments to interpret faculty speech as government speech at state colleges and universities will succeed as “that argument has failed every time it’s been advanced to date,” he also said he and the Heterodox Academy are critical of other aspects of S.E.A. 202.
“The idea that you can evaluate, you know, a professor’s career on how well they exposed students to a diversity of views,” Cohn said, “doesn’t really factor in how many views do you need to expose someone to…and in field by field by field it could be so variable.”
Additionally, he noted, “there’s no real no guidance here either in the law itself or in the policies the institutions created to implement the law.”
Moreover, Cohn said, there are other ways universities could foster a diversity of viewpoints such as “having different class offerings handling problems from different perspectives.”
“You don’t have to have the diversity within a particular class,” he stated, adding sometimes a university might hire someone because of their expertise in a particular school of thought with the expectation that they will teach from that perspective. “There’s nothing wrong with that,” he added.
Looking ahead, Cohn said, he thinks “the legislature should repeal certain aspects of the legislation” and that the courts might very well halt the implementation of some of its more troubling or unworkable components.
Pactor told The Fix a judge may rule on the request for a preliminary injunction in April, but there is no timeline for the court’s decision.
MORE: New Indiana higher ed law mandates intellectual diversity, enacts post-tenure review
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