The University of Idaho tries to restrict faculty speech on abortion

September 30, 2022 • 9:30 am

Idaho is one of those states that enacted draconian abortion bans after the Supreme Court’s Dobbs decision. Here’s how the law in that state is described by the Center for Reproductive Rights:

On August 25, Idaho began enforcing its trigger ban, which prohibits abortion at all stages of pregnancy, with exceptions for the life of the pregnant person and for survivors of rape and incest who have reported the incident to law enforcement. following the U.S. Supreme Court’s decision to overturn Roe v. Wade in the case Dobbs v. Jackson Women’s Health Organization.  However, the state is prohibited from criminalizing medical providers who provide abortion care to pregnant people in emergency situations pending the outcome of the Department of Justice’s lawsuit against Idaho on the theory that the trigger ban violates the requirement of the federal Emergency Medical Treatment and Labor Act (EMTALA). EMTALA requires hospitals that receive Medicare funds to provide stabilizing treatment to patients regardless of their ability to pay.

. . .Idaho retains targeted regulation of abortion providers (TRAP) laws  related to facilities, which was held to be unconstitutional, and reporting. Idaho law continues to restrict the provision of abortion care to licensed physicians and still restricts the use of telemedicine for medication abortion. Providers who violate Idaho’s abortion restrictions may face civil and criminal penalties.

The criminalization of abortion in this way has caused a chilling of speech about abortion. A report from the Academic Freedom Alliance (click screenshot below), notes that the University of Idaho’s legal department tried to regulate faculty speech on the topic:

The Academic Freedom Alliance (AFA) today sent a letter to the University of Idaho responding to a guidance memo from the university’s general counsel regarding faculty compliance with the state’s new abortion laws, particularly the memo’s guidance that faculty should “remain neutral on the topic” of abortion during classroom discussions. The general counsel’s memo warns that, due to new state laws against abortion, those found to be “promoting” abortion could face penalties including mandatory loss of state employment, bars on future state employment, prison time, and fines.

The University of Idaho is a state University, and thus academic speech falls under the aegis of the First Amendment.  Promoting choice (i.e., advocating breaking state law) is not a violation of the First Amendment, and, if there is a discussion of this in the classroom, there can be no Constitutional way to prevent a professor from expressing his or her opinion one way or the other.

The AFA’s letter to the University, from Keith Whittington, chair of the academic committee, lays out the reasons why this chilling of speech is unconstitutional:

It is well established that public universities like the University of Idaho are constrained by the First Amendment of the U.S. Constitution. The federal courts have specifically recognized that classroom speech by professors is constitutionally protected. Keyishian v. Board of Regents, 385 U.S. 589 (1967); Demers v. Austin, 746 F.3d 402 (9th Cir. 2014). The Demers court specifically held that “teaching and academic writing that are performed ‘pursuant to the official duties’ of a teacher and professor” at the university level is protected under the First Amendment. The United States Court of Appeals for the Sixth Circuit just months ago emphatically reaffirmed that the First Amendment does not tolerate state actions “that cast a pall of orthodoxy over the classroom” or that “stifle[s] a professor’s viewpoint on a matter of public import.” Quite simply, “the First Amendment protects the free-speech rights of professors when they are teaching.” Meriwether v. Hartop, 992 F.3d 492, 505 (6th Cir. 2021).

As for the law’s prohibition of the use of public funds (i.e., professorial salaries) to “promote abortion,”) that too is unconstitutional.

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. The U.S. Supreme Court has emphasized that a law is constitutionally invalid “if it prohibits a substantial amount of protected speech.” United States v. Williams, 553 U.S.

. . . When Congress criminalized not only conduct involving criminal facilitation or solicitation but also pure speech involving abstract advocacy, the courts have concluded that the First Amendment requires that those statutes be applied narrowly so as to exclude pure speech such as the kind of promotion of abortion that might occur in a classroom discussion. “The statute’s plain language is ‘susceptible of regular application to protected expression,’ reaching vast amounts of protected speech uttered daily.” United States v. Hernandez-Calvillo, 39 F.4th 1297, 1313 (10th Cir. 2022). In such circumstances, the restriction of classroom teaching on topics relating to abortion through the criminal law is impermissible under the First Amendment.

Ergo, if a professor says, “I favor unlimited abortion,” she is not violating the law.  You might think it would be different if the professor tells students that if they are pregnant they should get abortions, but I suspect that, too, is legal speech, for the prof is merely expressing an opinion and not facilitating or soliciting abortion.

In the end, the AFA says it takes no position on the legal regulation of abortion, but asks that the University of Idaho rescind its “required neutrality” regulation in favor of telling faculty that they have the right of free expression, including with respect to this law. The AFA also “calls on state official to swiftly clarify that the state criminal law should not be interpreted to apply to classroom discussions that do not involve the facilitation or solicitation of unlawful acts”:

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.

14 thoughts on “The University of Idaho tries to restrict faculty speech on abortion

  1. Shocking. The University of Idaho should be ashamed of itself.

    I see that The Center for Reproductive Rights uses “pregnant people” instead of women. Shame on them, too. Grrr!

  2. It is not only Idaho that is attempting to suppress academic freedom. The Chronicle of Higher Education has an article entitled “It’s Not Clear Whether Public-College Professors Have First Amendment Rights When They’re Teaching”

    The article states: “Professors at public universities have no right to freedom of speech when they teach, lawyers for the State of Florida argued in a court filing last week. Over the past few days, many academics have expressed outrage, describing Florida’s stance as a direct, troubling attack on academic freedom. Some have even called it fascist.” Here we have Ron DeSantis in action action.

    The article goes on: “But there’s genuine uncertainty over the extent to which the state can dictate what state-college instructors teach, two law professors told The Chronicle.” There are several court cases that make free speech for academics at public institutions subject to challenge.

    Note: the article is paywalled, but you can register to get a few free articles each month.

    https://www.chronicle.com/article/its-not-clear-whether-public-college-professors-have-first-amendment-rights-when-theyre-teaching?cid=gen_sign_in

  3. > Promoting choice (i.e., advocating breaking state law) is not a violation of the First Amendment

    I hope that is the case in every US state.

    California still mandates that its employees, including professors at state universities, sign a Loyalty Oath. I hope that they can advocate circumventing or breaking it, even if they are forbidden from breaking it themselves.

      1. It’s still Article XX Section 3 of the California Constitution, last amended in 1952. I’m looking for references to whether professors in general have received a recent exemption; the only relevant exemptions I have seen for the loyalty oath applies to non-citizens only. I know Wikipedia is not perfect, but I presume any legal change would be reflected there. The California Loyalty Oath also prevents employees from advocating unlawful political actions.

        Text of Article XX of the Constitution of California: https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CONS&division=&title=&part=&chapter=&article=XX

        1. From the California State University at San Marcos’ webiste;

          As a new California State University San Marcos Unit 11 employee, you will need to sign an oath of allegiance before you begin your employment. The oath requires public employees to make a declaration of loyalty to the government of the State of California and the United States of America. The oath requirement only applies to U.S. citizens.

          So at least one school in CA requires it.

          https://www.csusm.edu/fa/uawunit11/loyalty_oath.html

    1. Promoting choice is not in itself advocating breaking state law. Idaho, like all other states I’m aware of, criminalizes the performance of abortion, not the seeking of abortion. A resident of Idaho who travels to a state where abortion is legal commits no offence. So the actions by the university to suppress speech promoting abortion choice are even more reprehensible constitutionally because they prohibit speech that advocates the breaking of no law.

      If a professor speaking at a continuing education event for licensed physicians urged them all to keep doing abortions on demand, that would be counseling to break the law. I think that speech is still protected, if I follow discussions correctly. Making the same speech to people who can’t violate the law (because they aren’t doctors) must surely be protected by 1A. The university must be on shaky ground trying to suppress it.

      1. If a professor speaking at a continuing education event for licensed physicians urged them all to keep doing abortions on demand, that would be counseling to break the law. I think that speech is still protected, if I follow discussions correctly.

        Under the standard established by SCOTUS in Brandenburg v. Ohio (1969), speech is protected by the First Amendment unless it is both intended to incite and likely to produce imminent lawless conduct. So, yes, you have that right, Leslie.

    1. I think there’s a strong argument available that the added First Amendment interest in academic freedom serves to distinguish this situation from a standard public-employee speech case like Garcetti. See, e.g., Keyishian v. Board of Regents and Sweezy v. New Hampshire. (Then again, three of the justices from the five-justice majority in Garcetti v. Ceballos are still on the SCOTUS bench, while all four of the dissenters are dead or retired, so who knows what would happen were such a case to reach the high court.)

      Florida Gov. Ron DeSantis has a JD from Harvard Law, so should know better, but he’s shown no reluctance to dumb himself down to appeal to the culture warriors in the Trumpist GOP base.

  4. This is an interesting case. One possibility is that the University of Idaho will rescind its restriction on speech. Another is that it won’t, but neither will it enforce the restriction. A third is that some person or persons will bring suit and challenge the restriction in court.

    As big a waste of time and resources as the last entails, it might be good for the courts to reiterate earlier precedent and reaffirm the right of professors to exercise free speech. A reaffirmation adds clarity. It also takes universities off the hook in those states where abortion is being restricted, as it will end the fear of retribution from politically motivated state officials. Surely the University of Idaho is doing this as a defensive move and not because they are actually in favor of curtailing speech.

  5. Hmm, I’m hesitant as to how far “academic freedom” should extend to teaching. To me, it is more about the scholarship side of an academic role.

    Obviously this differs with subject area, but if a university assigns someone the task of teaching a quantum-mechanics module on a physics degree, then they are honour-bound to teach a fairly well-defined syllabus, containing the generally agreed content of such a module. For one thing, that’s what the students can rightfully expect, and, in addition, later modules will presume that the students have been taught certain things.

    Thus, the academic cannot instead teach their pet alternative theory. But in their non-teaching scholarship they can indeed propose an alternative theory.

    I get that things are different in humanities subjects, where syllabuses are much less constrained.

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