IU, Purdue separate themselves from state’s arguments about faculty First Amendment rights
By Steve Sanders
Three days ago, I reported that Indiana University and Purdue University had allowed their outside lawyers to “embrace” and “join in” a legal brief from Indiana Attorney General Todd Rokita that argued, in part, that their faculty have no First Amendment rights in the classroom. The argument comes in a case challenging a new state law that sets new rules for faculty promotion and tenure.
Today, the universities filed a short statement with the federal court effectively separating themselves from the AG’s extreme First Amendment arguments. The statement says precisely — as the universities should have done originally — that they are only joining the first part of the AG’s brief: his arguments devoted to the plaintiffs’ standing and the ripeness of the case for adjudication (which are not unreasonable).
While the filing doesn’t make any reference to the First Amendment, it does underscore both schools’ existing policies speaking to “academic freedom.” (By contrast, the Rokita brief scoffs at the idea professors are protected against the state by academic freedom.)
Purdue is upset with me for reading their legal filings. One of their flacks, Trevor Peters, gave a statement to a reporter for Inside Higher Ed saying I had “misrepresented” Purdue’s legal position, and that my article was “in error on many fronts.” I wrote him to ask exactly what errors he thought my piece had made. He didn’t respond. I had actually sent a draft of my story to one of IU’s in-house lawyers, invited corrections, and received none.
To be clear, I never said I believed the universities’ administrations thought their faculty had no First Amendment rights in the classroom. Rather, I reported that the three high-priced Barnes and Thornburg partners representing them had “embrace[d]” and “join[ed] in” a Rokita brief that said this. One must assume this decision was approved by the general counsels of both schools.
Did they just go along to avoid provoking Rokita, a right-wing activist who is trying to make political hay out of the case? Whether all these attorneys understood how toxic Rokita’s arguments would be to their faculties, or expected anyone to find out about them, can only be matters for speculation.
And the plaintiffs read the filings the exact same way I did. In their own brief, the plaintiffs addressed the First Amendment arguments as coming from “defendants,” meaning the universities and Rokita. So the plaintiffs’ lawyers plainly understood the universities to be embracing these toxic arguments as well.
Yet the universities’ lawyers — who could have corrected this in their reply brief filed last week — did not do so. Not until I brought the matter to public attention did they scramble to fix the problem.
As I explained in the original story, Rokita’s arguments about the First Amendment were addressed to the plaintiffs’ motion for a preliminary injunction. In light of the new filing, IU is telling the court only that the case should be dismissed at the threshold on standing and ripeness grounds. But it has offered no argument in opposition to the PI in the (unlikely, I think) event the judge finds the plaintiffs have standing.
