“Academic freedom is not a defense to violation of law, and faculty or others in charge of classroom topics and discussion must themselves remain neutral on the topic and cannot conduct or engage in discussions in violation of these prohibitions without risking prosecution.”
That is from an email from the University of Idaho’s General Counsel to the university’s employees on the subject of the state’s abortion laws, particularly a 2021 law prohibiting the use of public funds for abortions. Much of the email concerns the impermissibility of university employees encouraging, performing, or contributing to the provision of abortions while at work. But the email also includes guidance on teaching about abortion.
Faculty are permitted, for example, to have “classroom discussions on topics related to abortion when limited to discussions and topics relevant to the class subject.” But during such discussions, there must be “instructor neutrality.” The General Counsel writes:
Classroom discussion of the topic should be approached carefully. While academic freedom supports classroom discussions of topics related to abortion, these should be limited to discussions and topics relevant to the class subject. The laws discussed above, specifically including those addressing promoting abortion, counseling in favor of abortion and referring for abortion, will remain applicable. Academic freedom is not a defense to violation of law, and faculty or others in charge of classroom topics and discussion must themselves remain neutral on the topic and cannot conduct or engage in discussions in violation of these prohibitions without risking prosecution.
Many applied ethics courses include the moral and legal permissibility of abortion as topics, with the reading, presentation, and analysis of arguments for various positions. It is unclear how the analysis of such arguments can proceed in a way that is likely to strike interested observers as “neutral.” So it is unclear how the General Counsel’s guidance is compatible with the academic freedom of instructors teaching these arguments, or with the academic freedom of instructors who are deterred from teaching about them for fear that the university will not defend them against charges of violating the law.
Further, according to the email, “Employees who wish to counsel, promote or advocate in favor of abortion must do so outside of the performance of their job duties and without use of any university resources.” Does this mean that faculty may not write papers or books in which they argue for the moral and legal permissibility of abortion?
It is a pity that the university administration did not write to faculty promising to defend their academic freedom. Instead, they promoted an interpretation of the law that threatens academic freedom, and in doing so, laid the groundwork for accusations that faculty who discuss the ethical and political dimensions of abortion knowingly violated the law.
Inside Higher Ed reports further on the story here.
UPDATE (9/30/29): The American Association of University Professors (AAUP) released a statement about the email from the University of Idaho’s General Counsel. An excerpt:
Under principles of academic freedom widely endorsed by the higher education community, college and university teachers are entitled to freedom in the classroom in discussing their subject. All decisions about curriculum, subject matter, and methods of instruction should be made by educators who have expertise in the subject. Any attempt to limit that freedom must be soundly rejected by the faculty, the administration, the board, and all who care about the core academic mission of the institution. Advising the faculty to “remain neutral” will certainly chill speech, but its vagueness is also problematic… The proposed guidance here is indefensible from the point of view of public health, public education, academic freedom, free speech, and even simple logic. It undercuts the university’s educational mission and discredits its reputation.
The Academic Freedom Alliance (AFA) published a letter it sent to the University. An excerpt:
It is true that the Idaho Code § 18-8705 prohibits the use of public funds to “promote abortion,” but construing that statutory language to require state university professors to “remain neutral on the topic” is a vast overreach and inconsistent with the requirements of the First Amendment. It is imperative that the University of Idaho not merely inform the faculty of the potential risks of teaching with such a law on the books but also strongly voice its objections to any such interpretation or application of the state law. The general counsel’s guidance sends a chilling message to every member of the faculty who must discuss difficult and controversial material relating to abortion as part of their teaching duties. The statute itself might not recognize “academic freedom [as] a defense to violation of law,” but the First Amendment is an overriding limitation on the power of the state legislature to impose such a restriction on classroom teaching in state university classrooms.
The Foundation for Individual Rights in Education (FIRE) also sent a letter to the university. An excerpt:
U of I’s sweeping policy directly contravenes the university’s legal obligations and impermissibly chills in-class speech by placing faculty in perpetual fear of punishment for their protected expression. It does not take a significant stretch of the imagination to see how the university’s guidance will adversely impact classroom instruction. For example, a political science professor publishing a public policy argument that abortion should be lawful will have
to self-censor to ensure the discussion is not perceived as being “in favor of abortion.” A philosophy professor interested in prompting his or her students to consider the arguments for restricting access to abortion may play devil’s advocate by arguing for such restrictions—a decision that would violate so-called “instructor neutrality.” Even a constitutional law professor’s discussion of past court cases pertaining to abortion is at risk of being perceived as
violating “instructor neutrality.” The university must defend—not erode—First Amendment rights on campus. It must begin by publicly retracting this unlawful policy.