Last year, Indiana enacted a law, Senate Enrolled Act 202, with the stated intention of promoting viewpoint diversity and open inquiry on college campuses. Now the constitutionality of that new law and the policies Indiana University adopted to implement it have been challenged in federal court.

Institutions of higher education cannot properly fulfill their academic missions without prioritizing viewpoint diversity and open inquiry. Those bedrock principles are two of Heterodox Academy’s core values. Since our founding, we’ve hosted numerous discussions and research to explore ways these values can be built upon in higher education.

As an organization whose mission includes promoting viewpoint diversity and open inquiry on college campuses, one might expect Heterodox Academy to be among the law’s supporters. But we are not. The bill includes provisions we welcome, but it is riddled with too many constitutional and practical problems to earn our stamp of approval.

SEA 202 Provisions that HxA Supports

Before jumping into the law’s defects, we note that it does contain provisions HxA supports. For example, it requires institutions that have administrative offices that promote diversity to include “cultural and intellectual diversity” within those offices’ missions. The law also helpfully instructs institutions to adopt policies to sensibly prohibit substantial and material disruptions to free expression.

The main feature of SEA 202 is its reformation of the tenure system at public colleges and universities throughout the state. A couple of those reforms are positive, but most are problematic. On the positive side of the ledger, the law prohibits institutions from denying promotion or tenure for “[e]xpressing dissent or engaging in research or public commentary on subjects; [c]riticizing the institution's leadership; or “[e]ngaging in any political activity conducted outside the faculty member's teaching or mentoring duties at the institution.” These same factors are also taken off the table during post-tenure review.

Those provisions are worthwhile protections for academic freedom that HxA is thrilled to see enshrined into law. Unfortunately, the other reforms to the tenure system are counterproductive.

Problematic Provisions in SEA 202 and Indiana University’s Policies to Implement It

SEA 202 instructs each institution’s Board of Trustees to establish a policy where tenure and other promotions must be denied upon the trustees’ conclusion, “based on past performance or other determination,” that a professor is “unlikely to foster a culture of free inquiry, free expression, and intellectual diversity within the institution.”

Promotion or tenure must also be denied if the trustees conclude the professor is “unlikely to expose students to scholarly works from a variety of political or ideological frameworks” relevant to the professor’s field of expertise.

And, finally, promotion or tenure is to be withheld when the trustees predict that the professor is “likely, while performing teaching 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 then includes these same criteria in the formula for evaluating professors’ performance during post-tenure reviews, which must be performed every five years. A determination that the faculty member failed to satisfy any of the criteria could result in disciplinary action, including demotion, salary reduction, and even termination. And it instructs trustees to create systems for students and employees to file complaints against professors alleged to have run afoul of the criteria.

There are multiple constitutional problems with this framework, but a common theme among the defects is that the criteria are too vague to give professors any notice of what they must do and what they must avoid. What is sufficient to demonstrate that one has “fostered” a culture of “free inquiry, free expression, and intellectual diversity”? Neither the legislation or its resulting Indiana University policies (ACA 21, ACA 33, ACA 37, ACA 38) give any guidance.

Neither the law nor the policies specify whether faculty will be judged exclusively on classroom conduct and expression, or whether conduct and expression that is part of the performance of their other official duties are also fair game. This objection was raised in the lawsuit. The plaintiffs in the lawsuit assert that because of the lack of clarity, they “are being compelled to speak and are prohibited from speaking in violation of their First Amendment rights. The alternative to compelled speech and self-censorship is to risk adverse employment actions, through and including termination.” The legislation’s vagueness is forcing faculty to add content to their courses and articles they would not otherwise add and to bite their tongues when they would wish to speak. With such heavy potential consequences, many professors will simply choose to avoid topics that someone might deem “political” or “ideological” altogether, even if those topics are germane. Why risk it?

The second evaluation criterion, that faculty “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,” is also too vague. How many scholarly works from different political or ideological frameworks would be sufficient? Do all scholarly pieces that argue a particular perspective, now have to address competing views? How many competing views?

And setting aside the vagueness, while viewpoint diversity is crucial for the overall health of an institution, it’s unclear if it must be present in each individual course. Can’t viewpoint diversity be achieved through diversity of class offerings? Not to mention, what would it mean for the academy if scholars were no longer in the business of rigorously curating and vetting ideas, and instead, simply offered a relativist buffet of ideological viewpoints?

The third criterion also misses the mark. It would prevent promotions or tenure from being awarded to those whom the trustees deem likely 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” during class instruction.

According to the longstanding position of the American Association of University Professors (AAUP), faculty members should be careful “to avoid persistently intruding material which has no relation to their subject.” But this law has no requirement of persistence. Under SEA 202, the trustees’ guess that the faculty member is likely to ever express a political or ideological view that isn’t germane to the class is sufficient to justify the denial of promotion or tenure. And during post-tenure review, a professor who hasn’t “refrained” from doing so—again with no requirement of having persistently done so—could lose tenure and even be terminated.

One practical problem with this is that trustees don’t typically have the necessary academic expertise to judge which views are unrelated to the scholar’s academic discipline. It's not hard to imagine how an economics instructor examining environmental regulations could be misconstrued as doing something "political" by a trustee with no expertise.

Making matters worse, the legislation requires institutions to “[e]stablish a procedure that allows both students and employees to submit complaints that a faculty member” or job applicant is in violation of one of the criteria. Colleges and universities already have systems in place by which students can complain about a faculty member’s breach of an ethical or legal duty, and have end-of-semester student evaluations of teachers as well. Encouraging students to file complaints about a professor’s pedagogical choices, weaponizes the academic environment and pits students against faculty. This can create a chilling environment in which professors will be afraid to challenge their students, ultimately reducing the rigor of college classes.

Finding the ideal solutions that advance viewpoint diversity and open inquiry without creating new problems is challenging, so we appreciate the effort Indiana made to tackle the issue. While Heterodox Academy is concerned about this legislation’s approach to solving problems in the academy around the lack of viewpoint diversity and open inquiry, we are happy that lawmakers view those values as instrumental to the health of higher education. If the litigation has not been resolved by the time the Indiana Legislature returns to session in 2025, lawmakers should revisit the law. Rather than rely on punitive and overly vague criteria to promote open inquiry and viewpoint diversity, the legislature should think about ways it can reward institutions for promoting those core values.