Faculty presidents sent an email expressing concern about the state’s new abortion law. IU told them they had violated policy.
Who gets to define the ‘University’s interests,’ and should non-academic bureaucrats be empowered to decide what faculty speech is allowed?
By Steve Sanders
Late last summer, as Indiana lawmakers were enacting a strict new anti-abortion law and the state’s attorney general was launching an investigation against a faculty member who had legally provided an abortion to a minor, seven elected faculty-council leaders from five Indiana University campuses sent an email message to their campus communities expressing concern about how these developments could harm IU.
The message warned that the “health and wellbeing of members of the Indiana University community are threatened by” the “extraordinarily intrusive” new abortion law. It also criticized the “unprofessional, irresponsible, and quite frankly hysterical ad hominem attacks directed at our [medical school] colleague, Dr. Caitlin Bernard, by Indiana Attorney General Todd Rokita.”
A few weeks later, the signatories received a letter from the IU’s “Chief Compliance Officer,” Mike Jenson. The letter said the abortion email violated IU policy because their message was “a personal opinion” and “[t]he content of the email was not approved by any university official with the authority to authorize it.”
Jenson also said IU could invoke unspecified “formal disciplinary process” but would not do so this time.
At the IU-Purdue campus in Indianapolis, the faculty message was never disseminated, because it was blocked by administrators in consultation with the IU General Counsel’s office.
Bringing these developments to public attention is important because they underscore two problems.
First, as I will explain, IU policies currently create the possibility that faculty may be censored or punished for statements they make as participants in shared governance or as scholarly experts. As IU’s administrative ranks increasingly are populated by people who were not part of the norms and values that guided IU for generations — as personified by the late President Herman Wells and Chancellor Ken Gros Louis — it becomes more urgent to fix these policies.
Second, this episode demonstrates how even a sound policy could be misapplied by non-academic administrators who are empowered to pass judgment on professional communications made by faculty.
For this article I spoke with four of the faculty leaders involved (I reached out to all seven, but three did not respond) and posed questions to the general counsel, Anthony Prather. Two of the faculty leaders provided me with copies of Jenson’s letter. Prather declined to answer my questions but did not attempt to suggest that my writing about the matter would be improper.
The meaning of shared governance
As background, it is necessary to understand that faculty at IU and similar universities have a voice in the governance of their institutions, and that is by design.
Shared governance refers to the practices and structures through which trustees, administrators, and elected faculty representatives share responsibility for major policies and decisions affecting a university. The justification for this faculty role is that faculty bring specialized expertise and judgment, and also that they are responsible for carrying out the school’s academic mission. The Association of American Universities, an organization of the nation’s most important universities of which IU is a member, places shared governance alongside academic freedom and institutional autonomy as core “academic principles.”
At IU, shared governance is deeply rooted in our norms and traditions. This fact is recognized by the existence on each campus of faculty councils, which have both legislative and consultative functions; by the Faculty Constitution; and by the dozens of IU policies that require approval of faculty bodies.
The leaders who signed the abortion letter all were elected by their campus faculties, and most if not all have significant experience working with campus and central administrators.
The faculty leaders’ message on Indiana’s abortion law and Rokita
The idea for the faculty leaders’ message originated in the executive committee of the University Faculty Council. The signatories decided to act after IU President Pamela Whitten declined to speak publicly about the new abortion law and gave only an indirect defense of Dr. Bernard. Faculty in Bloomington received the message August 5.
The message argued that the strict new state law, which prohibits abortion at any stage of gestation except in cases of rape, incest, fatal fetal anomalies, or when the mother’s life is at risk, would harm IU’s institutional interests in effective education and in attracting and retaining people to work and study on its campuses. The leaders wrote in part:
We are especially concerned about the implications this pending legislation has for our students, many of whom have told us they believe their lives would be altered for the worse were they to be deprived by the State of the opportunity to make thoughtful personal decisions about whether to assume the responsibilities of becoming parents while they are still pursuing their own education.
Nor are these concerns confined to students. Indeed, over the past several weeks, we have received a flood of communications from our faculty and staff colleagues as well expressing genuine fear about what the pending legislation will mean for them, their families, and the thousands of highly talented students, faculty, and staff everyone at Indiana University works tirelessly to try to attract to the state each year.
The letter also addressed the public criticism by Attorney General Rokita against Bernard, an assistant professor of clinical obstetrics and gynecology in the IU School of Medicine. Bernard legally provided a medication abortion for a 10-year-old rape victim who was barred from obtaining an abortion in her home state of Ohio. Rokita launched an investigation, alleging Bernard had violated patient privacy laws by speaking about the matter and that she had failed to immediately report the rape that led to the girl’s pregnancy. (An Indiana judge would later find that Rokita’s statements were “clearly unlawful” because, in investigating Bernard, his office was obligated not to speak publicly on the matter.) The faculty leaders condemned what they called Rokita’s “scurrilous attacks on our colleague, Dr. Bernard” and compared them to the McCarthy era.
The faculty leaders made clear they were writing about the abortion law and Rokita not as citizen bystanders or individual faculty members, but as spokespersons for the faculty:
As elected leaders of our respective Indiana University campuses and the university as whole, we are professionally and ethically obligated to concern ourselves with … the health and wellbeing of our students, colleagues, and other members the communities we serve, as well as the local, national, and international standing of Indiana University as a reputable institution of higher learning known for its steadfast commitment to actively defending the principles of rationality, personal and intellectual freedom, and deference to demonstrable fact.
The message was signed by Catherine Reck, President of the Bloomington Faculty Council and Co-Chair of the University Faculty Council; Philip Goff, President of the Indianapolis Faculty Council and Co-Chair of the University Faculty Council; Mark Baer, President of the IU Northwest Faculty Organization; Colin Johnson, President-elect of the Bloomington Faculty Council; Gin Morgan, President of the IU Kokomo Faculty Senate; Carolyn Schult, President of the IU South Bend Academic Senate; and Marietta Simpson, Immediate Past President of the Bloomington Faculty Council. Faculty leaders on several other IU campuses chose not to sign it.
How IU’s policies fail to adequately protect faculty speech
Jenson’s letter to the faculty presidents, dated August 31, 2022, told them they had violated IU’s policy “GR‐01: Contact With State Officials, Federal Officials, and Political Campaigns, and other Political Activities.” It is important to understand how the misuse of this policy could potentially affect many other IU faculty.
Read in its entirety, GR-01 exists for two purposes: 1) to clarify who speaks for the University in lobbying and direct contacts with government officials, to avoid running afoul of state and federal lobbying laws, and 2) to assure that employees and students do not use IU resources to engage in candidate electioneering or partisan political activity, thus endangering IU’s tax-exempt status. The policy itself clearly states these two limited purposes.
No one claims the faculty presidents were engaged in lobbying, contacts with government officials, or advocating for a party or candidate. And so GR-01 would not seem to apply here.
Jenson’s letter zeroed in on incidental language from GR-01 that says faculty and others “are expected at all times to distinguish between when they speak, write, or act in their personal capacity…and when they speak, write, or act on behalf of the university’s interests.” The problem, he said, was the presidents hadn’t made clear they were expressing a “personal opinion.” And although the letter wasn’t clear on this point, presumably the issue also was that they had used IU email to do so.
First, that language from the policy must be understood in the context of the limited scope of GR-01, which is about lobbying and political campaigning. Again, the faculty presidents were doing neither of these things.
But second, GR-01 is flawed and susceptible to abuse because it reflects a narrow and incomplete understanding of what it means to speak about “the university’s interests.”
To be sure, elected faculty leaders do not necessarily speak for the IU administration. But the “university’s interests” are not determined and articulated solely by administrators. The presidents’ message was grounded in their assessment — as faculty officers — of IU’s interests. It was not personal politicking; it was a communication made within the University by people who were elected to help make judgments about the welfare of IU’s faculty, staff, and students.
According to GR-01, it is possible for faculty (and anyone else) to speak in only two capacities: either “in the individual’s personal capacity,” or “on behalf of the university,” i.e., as an officially authorized spokesperson.
The problem is, there is no recognition that faculty often speak (and use email and other resources) in two other capacities: addressing matters directly connected to the University’s welfare, as the faculty presidents did, or as subject-matter experts who are engaged with matters of public concern.
On the latter point, for example, in the law school I have colleagues who sometimes testify at the legislature to offer their expertise as scholars of civil rights, gun laws, and other controversial subjects. I am frequently quoted by journalists about high-profile legal issues. Other faculty across IU speak to professional associations and civic groups.
In all these cases, faculty are speaking neither “in their personal capacity,” if by that we mean unaffiliated private citizens, nor as designated IU mouthpieces. Yet, we are still speaking in a professional capacity consistent with our employment as faculty members, and consistent also with the University’s mission to engage in public service.
IU has a robustly worded academic freedom policy. It provides, “Academic freedom includes the freedom to express views on matters having to do with the university and its policies, and on issues of public interest generally.” (That policy protects articles like this one, as well as other journalism and commentary I’ve done about IU.) Yet like GR-01, the policy creates ambiguity, because it assumes that on these matters of University affairs or the public interest, faculty speak either as “citizens” or “for the university.”
No one disagrees that an employee shouldn’t use IU email to advance a political cause that has nothing to do with the University. 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.
The gaps in IU’s policies create doubts and leave room for mischief. Under GR-01, a faculty member might lack guidance on when they could be considered to be “speaking on behalf of the university.” One faculty leader told me it made them more fearful about things they said in the classroom!
Imagine a law or criminal justice professor who planned to testify as an academic expert about a proposed law concerning firearms on campus. Could IU forbid her testimony if it conflicted with the administration’s view of the “university’s interests”? Or, might some administrator make the same mistake as the University of Florida when it attempted to bar three professors from testifying as academic experts in a lawsuit against the state? (U.F.’s reason? Their testimony would be “adverse to U.F.’s interests.”)
The University of Idaho had its own controversy last September after its general counsel told faculty they should “remain neutral on the topic” of abortion during classroom discussions.
A letter like Jenson’s can have a chilling effect on faculty speech. One faculty leader observed, “If they had tried to actually invoke disciplinary process, I knew I would have an army of supporters…. But the fact I was not personally intimidated doesn’t mean another faculty member getting the same message wouldn’t have felt intimidated.”
As IU, like other universities, seems to drift away from the academic principles that once guided all levels of its administration, the potential for policies like GR-01 to be misused is real and should be addressed. The path for doing so would be for the leadership of the University Faculty Council to initiate discussions with the Office of Governmental Relations about clarifying GR-01, then to add new language to the academic freedom policy that more clearly delineates and protects the various roles in which faculty speak.
The problem of increasing control by non-academic administrators
Although the gaps in IU’s government-relations and academic freedom policies should be addressed, their misapplication here was the work of someone — perhaps several people — who apparently doesn’t understand how a university like IU works. The story of the faculty presidents’ abortion message says something about the increasing control of academic life by non-academic administrators.
In February 2023, Jenson, who has a law degree but no apparent experience with faculty and academic matters, was promoted to associate vice president and given the additional title of IU’s Chief Policy Officer. That role will give him responsibility over a huge spectrum of policies, including academic policies that directly affect faculty. For one person to oversee both the creation and revision of “policy” as well as “compliance” is unprecedented at IU.
Yet Jenson’s handling of the faculty presidents matter raises questions about his ability to understand and apply IU’s policies, as well as his understanding of his own authority.
Since the faculty presidents were engaged in neither lobbying nor candidate advocacy, the policy he invoked, GR-01, had no apparent application. Moreover, GR-01 falls under the purview of IU’s Governmental Relations office, not University Compliance.
Despite its name, the Compliance Office is not supposed to be a general watchdog over everyone’s conduct. Its role is to assure that IU adheres to the state and federal laws that regulate various aspects of its operations. But among the office’s diverse “compliance areas” — things like environmental safety and the federal privacy of student records — there is nothing related to speech or academic freedom. Adjudicating such matters appears to be beyond that office’s mission and competency.
With their abortion message, the faculty presidents did not implicate any state or federal law that regulates IU. 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.
As proof of that, look no further than former IU President Michael McRobbie’s condemnation in 2013 of a proposed state constitutional amendment that would have banned same-sex marriage. “[T]he lack of tolerance implicit in [the proposed law],” he said, “runs counter to IU’s deeply held values.”
And so the problem with the faculty leaders’ abortion message was not that it was inappropriately political; it was that it ran counter to the decision by IU’s leadership to keep a low profile on a political matter. That is a defensible strategy, but it does not prohibit elected faculty leaders from voicing a different view.
Jenson’s letter apparently was triggered after someone filed a complaint against the Bloomington faculty officers through an IU “ethics” portal. (My guess is that the complainant simply disagreed with the faculty presidents’ message for political reasons and wanted to cause trouble for them, a goal that succeeded.)
In his letter, Jenson says the message “generated complaints to multiple units” because it “stated a public policy position surrounding abortion rights in the state of Indiana.” Jenson says he discussed the matter with other unnamed “University officials.” The letter continues:
The message that was sent began with the sentence “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.” 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. The content of the email was not approved by any university official with the authority to authorize it.
There was a time when such administrators would have understood that because the signatories were writing in their capacities as elected faculty leaders, they necessarily were not speaking in their “personal capacity.” For the same reason, nor were they “expressing a personal opinion.” Rather, they were expressing their concerns as officers of the faculty about a new state law’s effects on IU and about harassment of a faculty member by an elected official.
As for Jenson’s suggestion that the faculty leaders could be subject to some vague and unspecified “formal disciplinary process,” the basis for it is unclear. There are specific IU policies and procedures (I’ve been involved in revising some of them) to be followed when a faculty member is accused of specific forms of professional or personal misconduct.
When I first obtained Jenson’s letter, I read it as an officious reprimand; I now see it as a clumsy but well-intentioned “please do not do this again.” Nonetheless, it demonstrates how mid-level functionaries can err because they lack understanding about a university’s values and academic governance.
The role of IU’s General Counsel
Jenson reports to IU Vice President and General Counsel Anthony Prather. Jenson’s signature line specified he was part of the GC’s office, and Jenson claimed to have discussed the matter with “other University officials.” According to my reporting, Prather was involved in discussions about the faculty abortion message and the complaint it generated, and he recommended the message not be disseminated at IUPUI.
Prather joined IU in 2022 after his predecessor, Jacqueline Simmons, was fired in the wake of reporting I did about irregularities in IU’s presidential search. Simmons had hired an outside law firm to search my email, and the Chronicle of Higher Education exposed her outraged and unprofessional response to a complaint I had filed about the Board of Trustees’ violation of the state open-meeting law. Prather previously was a management-side labor and employment lawyer at the Indianapolis law firm Barnes and Thornburgh.
A university general counsel must understand the role of faculty leaders and be able to work within a system of shared governance. A university GC does not just serve the interests of management; the person serves as the senior lawyer within a unique American institution, one with multiple constituencies, and such an officer should have the skills and values to navigate, translate, and negotiate among these constituencies.
I have no direct evidence about Prather’s role in the decision to find the faculty presidents in violation of policy. But since Jenson reports to him, it seems reasonable to assume Jenson acted with Prather’s knowledge, likely with his approval, and perhaps at his direction.
I sent Prather a set of questions, because I wanted to give IU the full opportunity to explain its view of the matter. Among my questions were:
The communication sent by faculty leaders made quite clear they were speaking in their capacities as elected faculty leaders…. Why, then, did University Compliance take the position they were merely “expressing a personal opinion”?
Jenson’s letter warned that “initiation of the formal disciplinary process” was “allowable” in this case. Please specify exactly what “formal disciplinary process” would be applicable in such a situation involving a faculty member.
Were you or anyone involved in sending Jenson’s letter in communication with Attorney General Todd Rokita or anyone from his office concerning the August 5 faculty leader communication?
Prather politely declined to answer any of these questions, saying he was prevented from doing so by attorney-client privilege.
I wrote back to explain why, in my opinion as a lawyer, it seemed doubtful the rules of attorney-client privilege applied here. In-house lawyers often conflate “attorney-client privilege” with “keeping secret everything that crosses my desk.” But I was inquiring about actions taken by one of his administrative subordinates, not legal advice Prather had given to an IU officer. According to a leading legal treatise, the law looks with disfavor where “privileges are asserted that in no way entail the seeking of legal advice … but are used to protect non-privileged business communications and decisions.”
I added that I feared it would cast IU in an unfavorable light, especially with its own faculty, if I was forced to report that the IU administration had refused to engage on this matter.
Prather again declined to speak with me. However, responding to my concerns that GR-01 did not adequately protect faculty speech, he did say he would be willing to “review any proposed changes that you wanted us to consider with respect to the policies at issue.”
As I was writing this article, an IU Bloomington newsletter carried an essay on shared governance by two of the faculty leaders who had signed the the abortion message, Cate Reck and Colin Johnson. They quote former IU President Herman Wells, who wrote,
Whereas talented faculty members have a right to be relieved of routine problems of housekeeping, there must be at the same time an opportunity for them and their colleagues to have a voice in all major policy decisions. Such input is requisite for the formulation of sound policy and is essential for the maintenance of the esprit de corps of the enterprise.
This principle of faculty leaders having a “voice” — which necessarily must include the ability to communicate with constituencies and the freedom to speak candidly about issues affecting the University’s well-being — is something IU’s policies inadequately protect. It is a problem that should be addressed.
Steve Sanders is a Professor of Law at the IU Bloomington Maurer School of Law and a Visiting Professor this semester at the University of Michigan Law School. He has written and taught about academic freedom and held leadership roles in shared governance, and earlier in his career he worked in IU school- and campus-level administration. In 2022 he received the Courage Award from the Indiana Professional Chapter of the Society of Professional Journalists for his reporting about irregularities in IU’s presidential search.
