Judge dismisses professor-led ‘intellectual diversity’ lawsuit, calls claims ‘premature’

A federal judge on Wednesday dismissed a professor-led lawsuit alleging the state’s new university “intellectual diversity” requirements are unconstitutionally vague, and declined to issue a preliminary injunction blocking enforcement of the new law.

Judge Sarah Evans Barker, of the U.S. District Court in Indiana’s Southern District, ruled that the professors’ allegations are “premature” because their universities haven’t finalized policies implementing the new law.

“The source of Plaintiffs’ alleged injury (or) injuries lies in university policies that do not yet exist, rendering their allegations unfit for judicial review,” Barker wrote in the 17-page order.

Legislators approved the law, Senate Enrolled Act 202, in March. It deals with public institutions for higher education and their boards of trustees: altering diversity-oriented positions and policies for tenure, contract renewals, performance reviews and more. The law also establishes new reporting and survey requirements based on “free inquiry, free expression, and intellectual diversity.”

The bill’s supporters said conservative faculty members and students are increasingly ostracized at progressively liberal college and university settings—or at least perceive such shunning. Faculty and students, who overwhelmingly opposed the law, said it would micromanage their institutions and have a “chilling effect” on free expression.

Case filed

The American Civil Liberties Union of Indiana filed a lawsuit in May, initially on behalf of two Purdue University Fort Wayne professors.

Professors Steven Alan Carr and David Schuster worried the law could require faculty to give “debunked” theories equal time in their classrooms alongside “rigorously studied academic analysis.” Carr, for example, teaches about the Holocaust and doesn’t want to indulge Holocaust denialism or revisionism, per the lawsuit.

Two Indiana University professors—David McDonald of the Bloomington campus and James Scheurich of the Indianapolis campus—have since joined.

The plaintiffs alleged that the law is so vague—“intellectual diversity” is defined but “free inquiry” and “free expression” are not—that they’re unsure how to “avoid running afoul” of its requirements. They said they’ve already engaged in self-censorship via changes to their courses, like scrapping previously included materials and adding materials they otherwise wouldn’t have used.

They sought a preliminary injunction. But the defendant universities and the state—as an intervenor—moved to dismiss the complaint. They argued the professors lacked standing because the potential harm faced would come from university policies; neither institution has finished such rules.

“Plaintiffs attempt to manufacture an injury by pointing to self-inflicted wounds,” they argued.

The judge agreed.

Barker wrote that federal courts can only solve “concrete disputes” involving real harms faced independently of “contingent future events.” In First Amendment cases, plaintiffs can allege harm before facing enforcement and through self-censorship, but their fear of enforcement can’t be speculative.

The judge observed that the law deals explicitly with institutions and their boards of trustees, not individual educators.

Because the policies aren’t yet finalized, she wrote, “it is impossible to determine whether Plaintiffs do in fact have an ‘objectively good reason’” for self-censoring. When the universities implement and enforce their policies, “those steps will inform whether such policies conflict with Plaintiffs’ conceptions of intellectual diversity; compel changes in their curricula; or otherwise infringe on their asserted constitutional right to academic freedom.”

She also noted the plaintiffs also didn’t take on the universities’ interim policies.

Because the judge dismissed the case for jurisdictional reasons and without considering the merits of the case, the move was made “without prejudice.” That means the plaintiffs can re-file or alter their claims and their request for declaratory judgment.