Teaching and Writing About Abortion in Idaho (and elsewhere?)
“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.
more here from Keith Whittington
Between this and what’s going on in Florida (https://www.insidehighered.com/quicktakes/2022/09/26/florida-asserts-control-public-universities%E2%80%99-curricula) it’s looking pretty bad for academic freedom. It would be a mistake, I think, to look to the First Amendment to save it. The Supreme Court created a lot of uncertainty by declining to say whether Garcetti applies to professors in public schools but it seems likely that the current Court would decide it does if it were to decide the issue. The more plausible legal route would be for colleges and universities to challenge anti-CRT laws in court, and to refuse to read anti-abortion laws as the GC at the University of Idaho did. But that kind of institutional fortitude seems to be in short supply these days. So for now it seems the best line of defense is an academic cultural one in which colleges and university commit to protecting academic freedom even if it is not clear it is legally required because it is seen as essential to their core mission. But this requires a broad cultural agreement that what colleges and universities do is important and that it requires academic freedom. As Robert Post put it, academic freedom is secure so long people believe that “academic freedom [is] the price the public must pay in return for the social good of advancing knowledge.” I’m not sure we can bank on this these days either.Report
I don’t think you can even count on faculty to take real (backed by threat of work-stoppages/strikes) action on these matters, hell they wouldn’t even organize meaningful resistance to the removal of public health protections in their own work spaces…Report
Maybe I’m missing some glaring detail, and I confess that it’s late on St. Vaclav’s day so I’m not at my level best. But why isn’t this a straightforward opportunity to test the courts in Idaho against the First Amendment? The administration is evidently feckless, and the lawyers of the University of Idaho (a public and land grant institution in Moscow, Idaho) are doing what the legal counsel of a state school in Idaho ought to do in this situation. But is there any question as to what the courts would decide? I’d like to think that if this was Montana, there’d be an intrepid university or department that said “hold my beer and watch this”. I can’t imagine any sensible discussion of abortion, that was brought up as violating the state law, would be an issue after the first judicial review. And the result would be that the law gets sent to where it belonged in the first place. So as far as “risking prosecution” goes, I say risk it!
/St. Vaclav’s dayReport
sure there’s a question about how the courts would decide, as with their radical stance on the relationship between govt and religious practices the Federalist types are open to positions that only the Congress is limited around the 1st Amendment.
see what the crazy 5th Circuit just tried to do to tech platforms.
More to the point what Uni president wants to further piss off their legislative overlords and their board of regents toadies?Report
If Idaho’s law prohibits not just obtaining an abortion but promoting abortion, by saying, for instance, “in my opinion, abortion should be legal,” then that is a straight-up violation of the First Amendment. No court in its right mind would uphold that part of the law against a First Amendment challenge, it seems to me, and there is a footnote in Garcetti saying the case does not rule on the academic setting.
Moreover, this is frankly a dumb, tone-deaf kind of memo for a university’s general counsel to write. Likely very few instructors, if any, are going to use their classrooms to “promote” one specific view on this; most instructors realize their job is to elicit and, when indicated, guide the thoughts and expression of their students on these sorts of topics, not convince the students of the correctness of their particular view. So the injunction to stay “neutral” is either unnecessary, since most instructors, while they may not stay scrupulously “neutral” at every second, are not going to be proselytizing for their view; and/or it’s an attempt to discourage any classroom discussion of the topic at all. For a university’s general counsel to write this sort of thing is a disgrace.Report
“No court in its right mind” – lol, have you seen the Supreme Court lately?Report
The real question is not whether I’ve seen the Sup Ct lately (I have) but rather 1) exactly what the Idaho law says about “promotion”, 2) exactly how it might be applied, and 3) the particular posture of a hypothetical case and the particular arguments that might be advanced (e.g., so-called facial challenge or as-applied challenge or both).
More directly to your comment, I’d suggest that there is a difference between a bad decision and, for lack of a better word, an insane decision. In my view, Dobbs is a very bad decision but it’s not insane. The vast majority of cases that reach the Sup Ct, even this Sup Ct with its proclivity to grant cert on cases the right-wing Justices esp want to hear, are cases where there are at least non-ridiculous legal arguments on both sides. Which means, among other things, that the number of insane decisions even this Sup Ct makes is going to be very small. Bad decisions, yes; totally bonkers, no.
I’m not a philosopher, so I apologize if my proposed distinction is not one that philosophers may be inclined to accept.Report
The law doesn’t say no one can promote abortion. It says publicly funded agents can’t, and this is constitutional. Plainly what should have happened is that the University of Utah talked to the state attorney general and get clarification before accepting a rather bonkers reading of the law by the GC. But, per Garcetti, public employers can limit employees speech as part of the terms of employment, even when those limits are based on a strange reading of the law. So the underlying question remains whether academic freedom carves out an exception to this when we’re looking at a professor in a classroom or doing research. And it seems that question, post Garcetti has yet to be definitely answered.Report
It’s a couple of days since Justin posted about this, and there are only six comments.
I think this demonstrates a broader point: the reason right-wing attacks on academic freedom don’t get that much air time in academic discussion spaces is that there just isn’t much to say about them. Idaho’s policy is appalling: illegal, unconstitutional, immoral, and fundamentally opposed to academic freedom; everyone sane in academia agrees; news at 11. We spend much more time at DN talking about left-wing attacks on academic freedom not because they’re more significant but because they’re more controversial and so there is an interesting discussion to be had.
(There is a different discussion to be had about how to actively oppose things like the Idaho or Florida legislation, but frankly DN, as an in-house space for academics to talk shop, is not well placed to host discussions of broader political strategy, so it’s not surprising it doesn’t happen here.)Report
Another point is that serious right wing attacks on academic freedom (such as this one) are pretty rare or non-existent in the UK, Western Europe, Australia, and NZ. So academics from these places are not so worried about them. On the other hand, the recent rise in left-wing attacks on academic freedom (i.e., cancel culture and all that), although worst in the US, is also occurring in these other places. So, for many academics outside of the US it is only the left-wing attacks is a serious concern for them.Report