Coalition of public university professors say law limits free speech on campuses

By Kelcie Moseley-Morris, Idaho Capital Sun, August 8, 2023

A coalition of professors from across Idaho have filed a lawsuit in federal court against the state alleging a law prohibiting the use of public funds to promote or counsel in favor of abortion is “sweeping and unclear” and violates their constitutional free speech and due process rights.  

It is the fourth lawsuit filed against Idaho for abortion-related laws, with three others challenging the details of the state’s near-total ban on abortion and a so-called “abortion trafficking” bill that restricts adults from taking minors out of state to obtain abortion care. Tuesday’s lawsuit targets the No Public Funds for Abortion Act, which passed in the 2021 session of the Idaho Legislature and prohibited public funds from being used to “procure, counsel in favor, refer to or perform an abortion.” Since public schools are largely funded by the state government, the law applies to faculty and staff at colleges and universities, including the largest schools of Boise State University, the University of Idaho and Idaho State University. Violations of the law include penalties ranging from a misdemeanor to a felony with prison time of up to 14 years, along with termination of employment and restitution of the public funds.

“The NPFAA therefore leaves Idaho’s public university educators with an impossible — and unconstitutional — choice: avoid any speech that could be construed as favorable to abortion in course materials, lectures, class discussions, student assignments and academic scholarship, or risk imprisonment, loss of livelihood and financial ruin for violating the law,” the complaint says.

The lawsuit asks U.S. District Judge David C. Nye to issue a preliminary injunction that would block enforcement of the law.

States Newsroom has reached out to Idaho Attorney General Raúl Labrador’s office for comment.

The Idaho Family Policy Center, a state-based organization that has pushed for anti-abortion legislation since 2020, drafted the bill in conjunction with the Alliance Defending Freedom, a national religious organization that wrote the model legislation used to overturn Roe v. Wade in 2022. Blaine Conzatti, president of the policy center, said in a press release Tuesday that the challenge is “meritless” and he believes it won’t be successful.

“The First and Fourteenth amendments to the U.S. Constitution do not provide carte blanche legal protections for higher education faculty to advocate or engage in criminal behavior on the taxpayer’s dime,” Conzatti said in the release. “The ‘No Public Funds For Abortion Act’ simply does not infringe on academic speech protected by the First Amendment, including classroom discussion on topics related to abortion.”

Professors have significantly altered courses for fear of prosecution, complaint says

The complaint was filed by the Idaho Federation of Teachers, the University of Idaho Faculty Federation and six individual professors: Aleta Quinn, Casey Johnson, Markie McBrayer, Zachary Turpin and Kathryn Blevins of the University of Idaho, and Heather Witt of Boise State University. The national and Idaho chapters of the American Civil Liberties Union are representing the plaintiffs, along with local law firm Strindberg Scholnick Birch Hallam Harstad Thorne.

Scarlet Kim, senior staff attorney with the ACLU Speech, Privacy and Technology Project, told States Newsroom some plaintiffs reached out to the Idaho branch of the ACLU independently and others contacted the union to express their concerns. 

“It’s vital for Idaho’s public universities to have autonomy in fostering vibrant debate on their campuses, free from government interference,” said Leo Morales, executive director of the ACLU of Idaho, in a press release. “Idaho’s abortion censorship law directly undermines that autonomy, attempting to restrict educators’ free speech and stoke fear of retaliation for such speech in our state.”

The complaint states the professors and the faculty within the two union groups teach about abortion across a diverse array of disciplines and say the law has placed a “straitjacket upon the intellectual leaders” of the state’s public universities.

“(The law) has stifled free and open academic inquiry about abortion across Idaho’s public universities,” the complaint states. “Professors who previously taught, discussed or wrote about abortion no longer do so. … The threat of prosecution continues to hang over professors as they plan for the upcoming school year, renewing their dilemma about how to structure their courses, teach their students and pursue their own research.”

A professor of philosophy removed an entire section of her biomedical ethics course that discussed human reproduction out of fear of prosecution, and professors of history, sociology, journalism, political science and social work have significantly altered course content as well, according to the complaint. Professors have also made changes to lectures and halted classroom discussion, stopped assigning, evaluating and giving meaningful feedback on student research and writing, and refrained from pursuing or sharing some scholarly and academic work because of the law, it said.  

Martin Orr, president of the Idaho Federation of Teachers and a sociology professor at Boise State University, said professors have told him they have felt “on edge” during classroom discussions that veer into the topic of reproductive issues and students have reported feeling frustrated by the limitations placed on course content and professor instruction. The lack of clarity around the meaning of the law makes some teachers wonder if even talking about the law is perceived by some as “promoting abortion.”

“This interview might constitute a violation of that law,” Orr told States Newsroom. “For a faculty member, just being accused of a violation could lead to termination, so it’s not like we would necessarily get our day in court before there were severe consequences.”  

Orr said the stress of avoiding legal consequences is a distraction from the work and time that could be given to students, and it can interfere with the types of exercises typically used in a classroom setting. 

“Students are not infrequently assigned to argue a position they don’t agree with, it helps us think critically and communicate more effectively,” Orr said. “Can we suggest, even as devil’s advocate, that students argue in favor of reproductive rights? There are all sorts of fundamental teaching tools that start to look very dangerous in this context.”

Attorneys argue law does not provide adequate definitions

The attorneys also argue the law violates the 14th Amendment of the U.S. Constitution that prohibits vague laws, in part because the law does not provide definitions for words like referring or counseling in favor of abortion. Because the law is unclear, it allows police and prosecutors to arbitrarily and discriminatorily enforce the law and “draw their own lines between permissible and prohibited speech,” according to the complaint. 

In March, portions of an art exhibit were censored at Lewiston’s Lewis-Clark State College because it included depictions of abortion pills and taped interviews with women who had abortions for various reasons. The college’s spokesperson cited the section of code with the No Public Funds for Abortion Act and said after obtaining legal advice, some of the proposed exhibits could not be included.

At the beginning of the University of Idaho’s fall semester in 2022, the school’s general counsel sent a memo to all employees advising them not to provide any reproductive health counseling to students and prohibiting the dispensing of any drugs classified as emergency contraception except in cases of rape. The memo also said the language of the law was unclear and because violations could result in a felony, the attorneys were taking a conservative approach.

Following the memo, Idaho Rep. Bruce Skaug, R-Nampa, introduced a bill in January to withhold sales tax revenue from cities that declined to enforce abortion laws, and that bill included language stating the law should not be interpreted to include classroom discussion of abortion, but it did not advance. The version that did pass into law, House Bill 22, did not include that language.

FEATURED IMAGE:  Violations of the No Public Funds for Abortion Act include penalties ranging from a misdemeanor to a felony with prison time of up to 14 years, along with termination of employment and restitution of the public funds. (Getty Images)

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