
“Litigation over Indiana’s relatively new intellectual diversity bill is in full swing as faculty at state institutions of higher education in Indiana still find themselves struggling to navigate the act’s requirements,” reports The College Fix. “Passed in March 2024, Senate Enrolled Act 202 includes a ban on mandatory DEI statements in hiring, promotion and admissions decisions. It also includes a requirement that boards of trustees enact policies requiring faculty to foster free inquiry, free expression, and intellectual diversity in their classrooms. Under the act, faculty who fail to do so may incur such penalties as termination or denial of tenure.”
The requirement that professors foster intellectual diversity is vague and violates the First Amendment, according to the ACLU of Indiana and the Heterodox Academy.
The ACLU says that under the law, Professor Steven Carr, who is director of the Institute for Holocaust and Genocide Studies, could be required to teach “‘Divergent’ perspectives regarding the existence and scope of the Holocaust” to comply with the law’s intellectual-diversity requirements.
“Certain parts of the statute require [professors] to affirmatively [say] things that they wouldn’t,” says Stevie Pactor, an ACLU lawyer. “It also chills their speech because it threatens punishment for certain speech that [instructors] might otherwise make,” she argues. “It’s also a problem when it comes to…its vagueness and its overbreadth. It is very difficult to figure out how one is supposed to comply with this statute from the perspective of a professor.”
When the state of Indiana was previously sued over the intellectual-diversity law, it argued that that the speech of faculty at state colleges constitutes government speech and thus is not protected by the First Amendment. Pactor finds that argument very disturbing, and federal appeals courts in other parts of the country have rejected it.
The ACLU-IN filed a lawsuit in May 2024 against the Purdue University, seeking to strike down portions of intellectual-diversity law, but the lawsuit was dismissed six months ago, as being premature, because a judge found that the plaintiffs didn’t yet have a concrete or imminent injury from the law, and thus lacked legal standing to sue over it.
“Standing is determined on the day that the lawsuit is filed and then has to be maintained throughout the lawsuit,” Pactor explains. At the time when lawsuit was filed, she noted, the policies at the center of the lawsuit had yet to fully take effect.
Later, after college policies to comply with the law went into effect at Purdue University and Indiana University, the ACLU-IN filed a new pair of lawsuits against the trustees of Purdue University and Indiana University. Those two lawsuits have been consolidated.
The professors named as plaintiffs in those lawsuits are Steven Carr and David Schuster of Purdue University, and David McDonald and James Scheurich of Indiana University.
Their teaching involves subjects such as eugenics, slavery, the Holocaust, the Israel-Palestine conflict, and DEI in education.
The ACLU says that Carr, who teaches about the Holocaust, could be required to teach perspectives downplaying “the existence and scope of the Holocaust” to comply with the law’s intellectual-diversity requirements.
Joe Cohn, the Heterodox Academy’s director of policy, said the ACLU’s argument is supported by a literal reading of the law, which makes no exceptions for situations in which teaching divergent views would be ridiculous. “It says you’re going to [be] evaluated on whether or not you’re exposing students to the various different views that are out there,” Cohn said. “Your responsibility as a professor would be [to] expose students to ideas as if it’s a relativist buffet without any filtering out process,” he added.
That’s true even though “S.E.A. 202 was offered in good faith to tackle what is a serious problem [of academic groupthink] and one that is not the simplest to solve.”
“It’s good when legislators are thinking about how to promote open inquiry on campuses and how viewpoint diversity…is part of that process,” he said.
“We thought that this legislation had some positive aspects that we’re pleased to see, but just got some of the details wrong,” Cohn added.
Cohn thinks “the legislature should repeal certain aspects of the legislation” and that judges might very well strike down some of its more troubling or impractical components.