IU, Purdue are telling a court their faculty have no First Amendment rights in the classroom
What kind of ineptitude is this? And are thousands of freshmen really flocking to Bloomington and West Lafayette this month to immerse themselves in four years of “government speech”?
[Update: on August 12, three days after I published the story below, the lawyers for IU and Purdue filed a short statement with the court that they join only Rokita’s arguments about standing and ripeness, not his arguments about the First Amendment.]
Indiana University and Purdue University allowed their lawyers last month to “embrace” and “join in” a legal brief by Attorney General Todd Rokita that argues that their faculty members have no First Amendment rights in the classroom. According to Rokita’s brief, as joined by the universities, the teaching of state university professors is “government speech,” and thus can be entirely controlled — and censored — in both “subject matter” and “perspectives” by the state legislature, a board of trustees, or some other government authority.
The argument is being made in a case filed in federal court in Indianapolis by the Indiana ACLU challenging SEA 202, the “intellectual diversity” law passed by the legislature last spring. The plaintiffs are several IU and Purdue professors who say the law violates their First Amendment rights. IU and Purdue are defendants (since their boards of trustees must enforce the law), but the AG’s office was allowed under federal procedure to intervene as an additional defendant, since the constitutionality of a state statute is being challenged. IU and Purdue are represented by lawyers from the Indianapolis law firm of Barnes and Thornburg.
How IU and Purdue joined Rokita’s legal argument to deny faculty First Amendment rights
This likely is a story not about a true change in university policies, but rather about ineptitude — and perhaps fear of Rokita — by lawyers and administrators, and their basic lack of understanding about the institutions they serve.
A careful study of the court docket and a lawyerly parsing of numerous filings in the case suggest that the IU/Purdue lawyers are pursuing a narrower defense theory than Rokita. They believe the ACLU lawsuit is premature, because no adverse action has yet been taken under the law that would inflict an “injury” against any faculty member, and thus it should be dismissed at the threshold. In legal terms, this is an argument about “standing” and “ripeness.” I believe this argument is correct.
Rokita agrees with this but goes much further. He argues that all teaching in the state university classroom is “government speech.” Attacking the merits of the plaintiffs’ case, not just their standing, the AG brief says the First Amendment has no role in college teaching, because “[t]he classroom curriculum of a public university is government speech set in accordance with State law…. The instruction offered by state-employed educators at public universities is likewise government speech.” The government, Rokita says, may determine both the “subject matter” and “perspectives” that are taught. “[A]ny speech pursuant to the teacher’s ‘official duties’ and ‘professional responsibilities’ is subject to state direction.” In short, college profs, who presumably were hired for their classroom brilliance and original ideas, can be treated as literally the government’s mouthpieces.
As I’ll explain below, most of this is wrong and the product of shoddy, if not outright dishonest, presentation of court precedents by Rokita’s office.
But here’s the crucial point: the Barnes and Thornburg lawyers representing IU and Purdue have not written their own briefs in the case. Rather, they are largely letting Rokita run the defense of the lawsuit. Their bare-bones filings simply say they “embrace, incorporate by reference, and join in” the briefs filed by Rokita. (For some reason, this requires three BT partners to be on the engagement.)
The university lawyers could easily have made expressly clear that they join Rokita’s arguments about standing and ripeness (which are reasonable and, I think, likely to succeed) but believe it is unnecessary for the court to reach the arguments about the First Amendment (which are extreme and directly harmful to the universities). But they did not say this. And so that means that all of Rokita’s arguments — set forth in a legal brief the universities say they “embrace” and “join in” without qualification — can fairly be attributed to the universities as well.
This isn’t just my interpretation. The ACLU lawyers for the plaintiffs, in their own brief, plainly understand that all the arguments in Rokita’s brief, including the extreme ones about the First Amendment, are coming from the “defendants” collectively, meaning the universities as well as the AG.
(Nerdy lawyer point: one could argue that Rokita’s First Amendment arguments are not superfluous but are pertinent to address the plaintiffs’ separate motion for a preliminary injunction, which of course IU and Purdue would also want to see rejected, but which they don’t separately brief. Again, IU and Purdue are letting the AG’s office run the defense.)
Besides being disastrous to the institutional interests of IU and Purdue as traditional academic communities, the arguments in the Rokita brief are completely irreconcilable with IU’s own clear academic freedom policy, as endorsed by the trustees, which says, “The teacher shall have full freedom of instruction, subject to adequate fulfillment of other academic duties. No limitation shall be placed upon the teacher’s freedom of exposition of the subject in the classroom or on the expression of it outside.” Purdue has a very similar policy.
How did these universities come to join a brief that is so hostile to their own faculty and which squarely contradicts their own core policies? Were trustees, academic administrators, or faculty leaders consulted or even told? I have no inside knowledge I can share publicly. But two things are sure: first, attorneys for a firm like BT (where IU’s general counsel most recently was a management-side employment lawyer) do not make decisions on important issues like this without talking with their clients and getting approval, and thus, second, the general counsel offices at both universities necessarily would have been involved.
Why Rokita wants to label college teaching as “government speech”
The point of attempting to label teaching as “government speech” is to deny professors any control over their pedagogy. If they lack such academic freedom, then government could require them to teach only state-approved subjects and viewpoints. Under this theory, taken to its logical conclusion, faculty members with advanced credentials and years of training could be reduced to ventriloquist dummies for whatever political faction happens to wield power on a university board of trustees or in the Statehouse.
Ask yourself: Are thousands of freshmen really flocking to Bloomington and West Lafayette this month to immerse themselves in four years of “government speech”?
The argument that government could force professors to teach only state-approved content and viewpoints goes beyond what’s necessary to defend against the ACLU lawsuit. But it is part of a larger political project on the right. Attorneys for Florida Gov. Ron DeSantis made the exact same argument in defense of a law that would have dictated what professors in that state could teach about race. A federal judge, quoting George Orwell, enjoined the law and called DeSantis’s arguments “dystopian.” A federal court of appeals upheld that ruling.
Shoddy lawyering in the brief that IU and Purdue joined
It’s unfortunate for another reason that IU and Purdue’s lawyers have acquiesced in letting Rokita drive the defense in this litigation: the AG office’s brief is, in key places, misleading if not outright dishonest, as someone familiar with the law in this area would easily spot. You might expect this from a partisan legal shop like Rokita’s, but two great universities should expect their lawyers to display more professionalism and competence.
For example, the AG’s brief cites, in a way intended to imply it is binding and dispositive, an important 2006 Supreme Court case, Garcetti v. Caballos, holding that government employees don’t have First Amendment rights in relation to “workplace speech.” But the brief doesn’t acknowledge, as would a lawyer seeking to preserve credibility with the court, that the Supreme Court explicitly reserved the question of whether that holding would apply to the college classroom, where it said there were “additional constitutional interests.”
In fact, no Supreme Court decision has endorsed the government-spokesperson view of professors in the classroom, and numerous lower courts have rejected it. Several post-Garcetti decisions in the federal courts have held that college faculty do have First Amendment rights in the classroom.
Through either sloppy research or intent to mislead, the AG’s brief squarely misrepresents the law on this point in the Sixth Circuit federal court of appeals, which is adjacent to our Seventh Circuit, suggesting that the Sixth Circuit agrees with Rokita. Certainly not. A robust 2021 decision by three conservative Republican-appointed judges in that circuit said “our court has rejected as ‘totally unpersuasive’ ‘the argument that teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction.’… Simply put, professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship.”
Rokita’s brief relies mostly on cases that deal with K-12 teaching, where the academic freedom of teachers is indeed much more limited, as if they are binding authority, but these cases have not been applied to higher education.
There are also just some gratuitous stupidities. Rokita’s brief claims the plaintiffs are seeking “a brand new, state-university specific ‘First Amendment right to academic freedom.’” In fact, the Supreme Court as far back as 1967 described the academic freedom of teachers at a public university as “a special concern of the First Amendment” and said the Constitution “does not tolerate laws that cast a pall of orthodoxy over the classroom.”
The judge in this case, Sarah Evans Barker, is one of the longest-serving, most formidable, and most no-nonsense judges on the federal bench. Do Rokita — and the IU and Purdue lawyers from BT — imagine that she won’t know all these things? The IU and Purdue lawyers should have had more integrity than to join a brief that plays as fast and loose with some of the law as Rokita’s does.
In conclusion, perhaps it isn’t surprising that a right-wing partisan like Rokita would argue that college teaching should be reconceptualized as speech that can be controlled by the government. But it is stunning that IU and Purdue did not clearly renounce Rokita’s more radical — and disingenuous — arguments. Instead, they chose to join a legal brief that suggests their own faculty members may be treated as government mouthpieces.
