Indiana's Proposed Bill S.B. 202 To Regulate University Political Discrimination
S.B. 202, Part I
(I have edited this to remove a part where I read the bill wrongly. See also Part II. The bill is out of the House Education Committee by this point, February 21)
The Indiana Senate recently passed SB-202, a bill to regulate discrimination in universities on the basis of political views. The bill is very controversial. I don’t think I’d quite say that faculty are freaking out, but we are concerned about it, even the tiny fraction of us who are Republicans. See the links page of the IUB Organizing Collective, the Ball State AAUP Chapter’s Statement, and the Joint Statement of IU-Bloomington and Purdue-West Lafayette AAUP Chapters on Senate Bill 202.1 I hadn’t looked into SB-202 carefully till yesterday, but I see that close reading is worthwhile, because a bill like this is tricky to write and may have the exact opposite effect of what is intended. So let’s look at three of its provisions, in the version that the Senate passed and that is now starting its way through the House.
The New Tenure Rule To Stop Professors from Using Their Classes for Indoctrination
Bill SB-202 says that the trustees must establish a policy hat in order to obtain tenure, an assistant professor must not politicize his classroom:
ARTICLE 39.5. STATE EDUCATIONAL INSTITUTIONS: THE PROTECTION OF FREE INQUIRY, FREE EXPRESSION, AND INTELLECTUAL DIVERSITY Chapter 2.
(b) Each board of trustees of an institution shall establish a policy that provides that a faculty member may not be granted tenure or a promotion by the institution if, based on past performance or other determination by the board of trustees, the faculty member is:
(1) unlikely to foster a culture of free inquiry, free expression, and intellectual diversity within the institution
(2) unlikely to expose students to scholarly works from a variety of political or ideological frameworks that may exist within and are applicable to the faculty member's academic discipline; or
(3) likely, while performing teaching or mentoring duties within the scope of the faculty member's employment, to subject students to political or ideological views and opinions that are unrelated to the faculty member's academic discipline or assigned course of instruction
The bill is trying to deal with a real and important problem: that the universities have become state-funded leftist political organizations. But it goes about that in a very naive way. Instead of taking power away from the politicized organization, the bill gives the organization more power against dissident professor. You have to think about who is going to administer the new law, who controls it, who will be in a position to abuse it. It will be controlled by the Administration and the Faculty, not by legislators or courts.
How would it work out in practice? Probably the Trustees would write a policy that would not conform literally with this section, and they might write it to be totally vacuous. Whatever the Trustees write as a policy, I predict the new law would be used not to block tenure for radical professors turning their classrooms into activist teach-ins, but to block tenure for the few conservative professors out there. This would be easy; it is a matter of selective enforcement, and finding a pretext to block tenure for a brilliant scholar and teacher. The Administration can say, “Professor Smith is great at teaching, administration, and service, but in his physics class he would often talk about his very strong views in support of the Indianapolis Colts, so we have no choice but deny him tenure.” The Faculty, the professors in his department who vote on the tenure candidate, can do the same thing.
Parts (1) and (2) are indeed desirable, but the bill won’t help. A good professor thinks about those things, and will try show students both sides of an issue and get them to think which is right and which is wrong, even though he may give his own strong opinion on that too. He will assign readings on both sides also, even if he tells the students what he thinks is wrong with some of the readings. He will bend over backwards to make students hostile to his own view feel comfortable arguing for their views in class.2 He will try to “steel-man” the opposing view, presenting it as sympathetically as possible, even when that is difficult.3 A bad professor won’t do that: he’ll teach only his own view, won’t address any criticism of it, and will punish students who dissent. How is a bad professor to be dealt with? His colleagues, other professors in the same department, should take him aside and tell him to behave himself. If he doesn’t, they should vote against him for tenure on grounds of bad teaching even without this new law. What if they are bad also, or too irresponsible to make the effort to talk to their colleague? That’s a big problem, and one we currently have. It’s a problem of organizational personnel and culture, and hard to solve with the blunt instrument of official policies.
I’m sorry. I share the viewpoint of the Indiana Senate, in general, but their well-intentioned bill misses its intended target and achieves the opposite of what they want. They do not reckon with the deviousness and hypocrisy of university administrators, who are well-practised in subverting laws and regulations (just think of how they turned anti-discrimination law into pro-discrimination policy).4 this section ought to be rewritten, probably with a provision allowing someone to sue and get the issue into a state court if the university violates the statute or selectively enforces it.
Non-Tenure-Track Faculty
[This is where I misread the bill. It *does* cover non-tenure-track faculty, just in a different place than I thought it would.]
The Rule Forbidding DEI Statement “Loyalty Oaths”
In contrast to the well-intentioned but misguided provisions regarding tenure and post-tenure review, the section regarding “loyalty oaths” is pretty well-constructed. The university can’t require DEI statements (statements requiring support for “affirmative action” or other leftwing policies), though it may suggest them as an option, and it can’t use them in its decisions.
Chapter 3. Requirements Regarding Students, Employees, 12 Contractors, and Applicants
Sec. 1.
(a) This section applies to the following:
(1) An applicant for admission, enrollment, or employment at an institution.
(2) An employee of the institution.
(3) A person with whom the institution contracts to teach or mentor a student of the institution.
(b) An institution may not require an applicant, an employee, or a person described in subsection(a) to pledge allegiance to or make a statement of personal support for any:
(1) policy or action that would treat similarly situated people or groups of people differently based on the race, color, national origin, sex, sexual orientation, or religion; or
(2) political or ideological movement.
(c) If an institution receives a pledge or statement described in subsection(b), including any statement regarding diversity, equity, and inclusion, or related topics, the institution may not award:
(1) admission, enrollment, or employment;
(2) benefits;
(3) hiring, reappointment, or promotion; or
(4) granting tenure; to an applicant, an employee, or a person described in subsection (a) on the basis of the viewpoints expressed in the pledge or statement.
The current DEI statement requirements that many universities have for job applications are often called “loyalty oaths”, because they are reminiscent of the oaths not to overthrow the Constitution by violence that the University of California required professors to sign in 1950.5 Unlike with the classic loyalty oaths, e universities do not tell job applicants they’ll be rejected if they say in their DEI statement that they oppose affirmative action, claims that the U.S. is racist, “diversity training” for students, and so forth, but everybody knows they will. Often, job candidates with the “wrong” views are rejected by low-level administrators even before the faculty gets to see their applications, regardless of how good they are as scholars and teachers.
Clearly DEI statements are a bad idea. They’re a lot like having “religion statements” where you have to talk about your attitude towards Christianity when you apply for a state job. They will be found unconstitutional sooner or later, I would think, even without new laws, since government institutions such as Indiana University are not supposed to hire people for non-political positions based on their political beliefs. But in the meantime, banning the use of DEI statements is a good idea.
It would be even better to ban DEI statements. Banning DEI statements is different from banning the use of DEI statements. What SB-202 does is to ban the universities from requiring DEI statements and from using DEI statements. It doesn’t ban universities from asking for DEI statements. This means the universities can still ask for DEI statements of all job applicants. Why would they do that, when they aren’t allowed to use DEI statements in deciding who to hire? —because universities don’t mind breaking the law when they can get away with it. Just as universities ask applicants for their race even though it is illegal to discriminate on the basis of race, so they’ll tell an applicant that if he wants to he can say he agrees with the university president’s view on affirmative action but they won’t hold it against him if he doesn’t. Thus, the bill should be amended to say
(b) An institution may not require OR SUGGEST TO an applicant, an employee, or a person described in subsection(a) that he pledge allegiance to or make a statement of personal support for any:
The change in the board of trustees so the alumni members are appointed by the Senate and House instead of being elected
The last provision I’ll discuss is relatively innocuous. Most readers will find it uninteresting, so I’ll write a conclusion here for them:
I’m sorry. I share the viewpoint of the Indiana Senate, in general, but their well-intentioned bill misses its intended target and achieves the opposite of what they want. They do not reckon with the deviousness and hypocrisy of university administrators, who are well-practised in subverting laws and regulations. S-202’s DEI statement ban is good, though it needs to be amended to prevent the university from asking job applicants for “voluntary” DEI statements. S-202’s new tenure and post-tenure-review requirements, though, need complete rethinking, and the best thing to do would be to strip them from the bill and rethink them for a new bill next year.
But if you are a drafting geek, or care about organizational design, keep reading. The board of trustees part of SB-202 says:6
The change is probably a good one, but I liked it a lot better in the version before it was amended in the Senate, back when it enlarged the Board to 11 members and kept the 2 alumni trustees who were elected by the alumni. The alumni trustees are the only ones not chosen by the Establishment. Currently, the Governor, the Speaker, and the President Pro Tem are all, I think, Establishment Republicans, and that may remain true in Indiana indefinitely. I would would restore the elected alumni trustees, not require the legislative trustees to be alumni, and reduce the number of gubernatorial trustees by three, including eliminating the student trustee.7
In any case, I would have cleaned up the statute as follows just as a matter of cleaner writing style:
For each university designed in Chapter 1, section 2 of Article 39.5:
(a) The governor shall appoint five members of the board of trustees of that university, including the studen member appointed under section 13 of this chapter.
(b) The President pro tempore of the senate, with advice from the Senate’s minority leader, shall appoint one member who:
(1) is an alumnus of the university; and
(2) is not a member of the General Assembly.
(c) The Speaker of the House of Representatives, with advice from the House’s minority leader, shall appoint one member who:
(1) is an alumnus of the university; and
(2) is not a member of the General Assembly.
Appendix: Political and Process Information
I’ll also provide some information useful to anyone wanting to try to affect the passing of this bill.
Authored by: Sen. Spencer Deery, Sen. Jeff Raatz, Sen. Tyler Johnson.
Co-Authored by: Sen. Gary Byrne, Sen. Stacey Donato, Sen. John Crane, Sen. Linda Rogers.
Sponsored by: Rep. Robert Behning, Rep. Michelle Davis, Rep. Jake Teshka, Rep. Robert Heaton.
H 02/12/2024 First reading: referred to Committee on Education
I’m a member of the IU-Bloomington AAUP Chapter, but I don’t necessarily agree with either of the AAUP Statements (maybe I do; I haven’t really checked, but I often disagree on details with my fellow AAUP’ers.
I remember while I was on sabbatical at Harvard Law School hearing Professor Alan Dershowitz, a strong liberal, talk about how much he likes having an outspoken conservative student in his classes. He said that besides broadening the point of view and making the class more interesting, having an extreme conservative talk made the centrist and moderate conservatives brave enough to talk too.
I remember my difficulty in doing that when talking about regulations restricting genetically-modified corn, which is digested exactly the same as old-fashioned corn when a person eats the pork from hogs raised on it. It’s a bit like teaching why astrology is wrong in an astronomy class— educational for the students, but bound to offend some students’ deeply held, almost religious, beliefs. (I really do believe an astronomy class should discuss astrology— not only do some students need to hear about it, but learning why it is wrong helps teach why astronomy is right, since many students have a pre-scientific viewpoint.)
I’ll do some thinking and see if I can come up with a free-inquiry policy that is harder to abuse by selective enforcement.
The California oath “required all University employees to pledge their loyalty to the state constitution, and to deny membership in, or belief in, organisations promoting the overthrow of the US government: the clear emphasis being on Communist organisations.” See Josh Hardman, “UC Berkeley: The Loyalty Oath Controversy, 1949-51,” Part 2 of 6 in “A History of Repression at UC Berkeley” (2016). A longer but more accurate article (Hardman is wrong in saying Prof Panofsky was fired) is Nancy Innis, “Lessons from the Controversy over the Loyalty Oath at the University of California,” Minerva, 30: 337-365 (September 1992).
Personally, I think it’s not too high a hurdle to require job applicants to promise not to try to kill their boss. To be a Communist in 1950 meant you were utterly loyal to Joseph Stalin or you would have been expelled from the Party, so you supported the killing of millions of peasant for owning more than 25 acres of land (the “kulaks”) and thousands of party members for not being quite communist enough. If you’d also been a Communist in 1940, that meant you cheered for the Nazi’s for the first part of World War II, when Germany was fighting Poland, France, and Britain and the Soviet Union was a German ally. (The Party changed its attitude drastically after the Nazi’s invaded Russia in 1941.)
The Trustee reorganization part of the bill was dropped in the House Education Committee.
This is the Indiana University part; Ball State, Indiana State, Purdue, etc. have similar sections in the Indiana statutes.