The First Amendment and practical implications of SEA 202

During the 2024 legislative session, the Indiana General Assembly passed Senate Enrolled Act 202-2024 (Senate Bill 202), which was promoted by Republican lawmakers as a mechanism for increasing “intellectual diversity” within Indiana’s public colleges and universities.

Many faculty and university students opposed the bill, fearing it would limit free expression on campuses, a traditional pillar of university life and academic freedom.

After its passage and signature by Gov. Eric Holcomb, the bill took effect on July 1 and became the first of its kind in the U.S. to become law.

The bill’s language is broad in its reach. Among other provisions, the bill impacts public university diversity committees, diversity programming, disciplinary actions stemming from expressive activity, free speech violation complaint processes, employment contracts, tenure policies and new student orientation programming.

It empowers the Indiana Commission for Higher Education to serve in an adjudication capacity when complaints are levied against a university. Notably, many of the bill’s provisions require Indiana’s public colleges and universities to draft or update existing policies in order to comply with the new law.

In short, the bill was largely seen as a way to make Indiana’s public colleges and universities a more welcoming environment to individuals with conservative views, based on the premise that many colleges and universities have inherently liberal or progressive cultures.

Despite amendments to the bill during the legislative process, those opposed to the bill maintained it amounted to government overreach into higher education and, according to the Indiana Conference of the American Association of University Professors, would “create an atmosphere of suspicion in the classroom and on campus.”

Unsurprisingly, a lawsuit was filed challenging the new law quickly after it took effect. The American Civil Liberties Union of Indiana brought the challenge on behalf of four professors at public universities in Indiana.

In its complaint, the ACLU alleged that the statute infringes upon the First Amendment free speech rights of the professors and that the statute is impermissibly vague in violation of the First Amendment and the due process clause of the 14th Amendment.

But on Aug. 14, Judge Sarah Evans Barker of the U.S. District Court for Southern Indiana dismissed the case, finding the issues to not yet be ripe for adjudication.

Barker found that the source of any injury to the professors lies in university policies that do not yet exist, rendering the suit not fit for judicial review. In essence, the bill language directs university boards to create policies—rather than the act itself creating or mandating a policy–and because those policies have not yet been created by university boards, the court found that the plaintiffs could not yet claim injury.

While the suit was dismissed for lack of standing and ripeness, the parties’ briefing in the suit previews potential concerns that universities may have as they implement policies to comply with the new law.

Government employees, including university professors, are entitled to some amount of First Amendment free speech protection—though the amount of protection is subject to debate.

Specifically, the state, which intervened in the case through the Indiana Attorney General’s office, argued that the act only implicates curricular speech, which the state argues is core government speech and thus not subject to any free speech protections in favor of classroom instructors.

On that point, the university defendants, Indiana University and Purdue University’s trustees, clarified that they joined only the state’s arguments on standing and ripeness—and, thus, they did not join in the state’s argument that the act implicates only government speech.

The court declined to address the merits of the constitutional claims, focusing only on standing and ripeness.

As Indiana’s colleges and universities work to draft these new policies, their work will undoubtedly be closely scrutinized to see whether the policies can balance First Amendment protections with compliance of the new law.

Beyond the purely legal implications, there are also practical implications stemming from SB 202 to consider as well.

During the legislative process, the impact of the bill on faculty and student recruitment and retention was debated.

Among its list of concerns, the AAUP also asserted that the bill would lead to intellectual brain drain from the state, arguing that any erosion to academic freedom would undermine the reputation of our public colleges and universities’ ability to recruit and retain talent.

Also interesting is the juxtaposition SB 202 created with another bill that was passed by the General Assembly, House Bill 1002. HB 1002 declared that it is the public policy of the state for educational opportunities to be free of antisemitism.

While that proposition undoubtedly enjoys wide support across the political spectrum, it does not necessarily align with the basis of SB 202 protecting intellectual diversity.

For instance, if a faculty member is punished for expressing allegedly antisemitic views, is that faculty member protected under the provisions of SB 202?

Or if a group of students shout down another student for attempting to express allegedly antisemitic views, would that group of students be subject to a disciplinary compliant under the provisions of SB 202?

These seem to be questions left unresolved as of now and the subjectivity of what constitutes antisemitism may also raise similar vagueness concerns the ACLU claims in its challenge to SB 202.

Much like the First Amendment implications, the degree to which these practical considerations become an issue will likely be determined by the substance of the forthcoming university policies.

As Barker’s recent order suggests, new litigation is likely to arise once these new university policies are put in place.

With SB 202 being the first of its kind in the country to become law, this could mean Indiana will soon find itself at the center of initially establishing new precedents in academic freedom jurisprudence in the years ahead. •

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Brad Boswell, Elizabeth Charles and Scott Chinn are attorneys at Faegre Drinker Biddle & Reath LLP’s Indianapolis office. The opinions expressed in this article are those of the authors.