Background
Four professors at Indiana University and Purdue University brought a pre-enforcement facial challenge to Indiana’s Senate Enrolled Act 202 and university policies implementing it. The law requires state universities to consider whether faculty foster free inquiry, free expression, and intellectual diversity in tenure, promotion, and periodic-review decisions. It also requires complaint procedures and authorizes disciplinary measures for tenured faculty who fail to satisfy specified criteria.
The professors alleged that the law and policies chilled their academic speech and caused them to alter readings, classroom content, and course structure. Indiana University professor David McDonald also had been the subject of complaints concerning an allegedly anti-Israel presentation, but he was not disciplined and heard nothing further after communicating with university officials. The district court dismissed the consolidated actions for lack of subject-matter jurisdiction and denied a preliminary injunction, concluding that the professors lacked Article III standing.
The Court’s Holding
The Seventh Circuit affirmed because the professors had not established an injury in fact. In a pre-enforcement First Amendment challenge, the professors needed to show either a credible threat that the law or policies would be enforced against them or an objectively reasonable chilling effect grounded in a well-founded fear of enforcement. The record showed neither: the law and existing policies stated general requirements but did not establish that the professors’ unchanged teaching practices would violate them, and the universities had not enforced or threatened to enforce those requirements against the professors.
The court rejected two categorical arguments advanced by the defendants. The statute’s indirect operation through university policies did not automatically defeat standing, and policies can produce an injury even when labeled “interim.” Those considerations were relevant but not dispositive. On the existing record, however, the professors could not connect their self-censorship to a concrete mandate or individualized enforcement threat. Because they lacked standing, the court did not address ripeness, the constitutional merits, or the request for a preliminary injunction.
Judge Easterbrook concurred separately while joining the court’s opinion in full. He stated that he also saw no plausible First Amendment claim because, in his view, academic freedom belongs to the university, public universities may determine what and how they teach, and professors’ classroom speech is speech hired and controlled by their government employer.
Key Takeaways
- A plaintiff bringing a pre-enforcement First Amendment challenge must establish a credible threat of enforcement; subjective concern and voluntary self-censorship are insufficient.
- A law’s indirect application and a policy’s interim label do not categorically foreclose Article III standing.
- The dismissal was jurisdictional and did not resolve whether Indiana’s law or the universities’ policies violate the First or Fourteenth Amendments.
Why It Matters
The decision leaves Indiana’s intellectual-diversity law and the challenged university policies in place without deciding their constitutionality. It emphasizes that professors challenging such measures before enforcement must identify how their intended speech arguably violates the governing requirements and show a concrete, individualized basis for expecting enforcement.
The court also left open the possibility of a later challenge if implementation or enforcement creates a credible threat or an objectively reasonable chilling effect. Judge Easterbrook’s separate concurrence addressed the merits, but his view that classroom academic freedom belongs to the university was not part of the panel’s holding.