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When Smith woke up the next morning, she thought it had been a dream.
“It’s pretty outlandish,” she said. “I thought I literally had made it up in my head.”
She hadn’t. After the Supreme Court overturned Roe v. Wade, the case that guaranteed abortion as a constitutional right, Idaho laws banned the procedure — and went further. Under one law, using public funds to “promote” or “counsel in favor of” abortion is illegal.
The University of Idaho’s general counsel in September sent all employees, including student workers, a roughly 1,365-word memo about what the new law meant for them. The memo instructed faculty and staff members to “proceed cautiously at any time that a discussion moves in the direction of reproductive health.” They should try to bring up abortion only if it is relevant to coursework.
The memo sparked an uproar. President Biden mentioned it at a public meeting, commenting, “Folks, what century are we in?” Free-speech advocates blasted the university for overinterpreting the law, needlessly censoring its own employees.
But the controversy in Idaho is not unique, as more and more state lawmakers seem eager to interfere with the work of running campuses and classrooms. In the past two years, more than a dozen states have passed laws or taken other actions that discourage the teaching of critical race theory or “divisive concepts,” posing a threat to free speech in academic settings. More such action is coming this year. Gov. Ron DeSantis of Florida has proposed eliminating public colleges’ diversity spending in his recent higher-education plan. Bills seeking to interrogate or curtail how colleges incorporate diversity programming into their operations have sprung up in Iowa, North Dakota, Oklahoma, and Texas.
As states pass more laws, colleges and universities will be left to interpret them. In cases where the effect on higher education is unclear, administrators will be left to divine where the line between legality and illegality might be, and that’s what worries free-speech advocates. Campus leaders who do not want to run afoul of lawmakers and risk losing state funding may decide to play it safe and tell their employees exactly where they think that line is — and instruct them not to cross it. Faculty and staff members without job security and those who do not wish to draw the attention of the conservative media may feel pressure to self-censor.
Such guidance allows legislators to regulate speech “not through direct censorship, but through prudent managing of risk,” said Jeremy C. Young, senior manager of free expression and education at PEN America. He said the laws amount to the most severe intrusions into free expression on campuses since the McCarthy era, in the 1950s. The PEN America staff, he said, has started referring to them as the “Ed Scare” because they’re so reminiscent of the “Red Scare.”
“It’s not that they are hand-in-glove conspiring with the people who want to make it a crime to talk about abortion, but of course this is how censorship happens,” Young said. “This is the banality of censorship.”
With the new law in place, Iowa State rejected Behnken’s work, which consisted of four learning standards to fulfill a diversity requirement. The university later reversed course and accepted it, but only after making changes with which Behnken disagreed. He thought it was an overreaction.
The provost’s office released guidelines about how faculty and staff members should interpret the law, known as HF 802, explaining that it generally applies to mandatory trainings. But the guidance also said faculty members who teach should pay attention to the law, particularly if students need their courses to fulfill a requirement. It encouraged professors to ask themselves whether the concepts described in the law are “germane” to what they teach. If the concepts are not germane to the course, “the risk of drawing scrutiny under the act increases.”
Faculty members at Iowa State voiced concerns about the law with the provost and general counsel at a Faculty Senate meeting in the fall of 2021. The exchange, chronicled in the meeting minutes, highlights administrators’ balancing act: advising college employees how to follow the laws without infringing on their academic freedom.
“Laws are tested in court, and as they are tested, we learn more about what they mean,” said the provost, Jonathan Wickert, according to the minutes. With Iowa’s new, untested law, “there is no bright line separating what is OK from what is not.”
He explained that the university’s interpretation, which he said might change, was meant to lessen the likelihood that faculty members would draw fire from the public, particularly on social media.
“We know that we are being watched, and so we want to take a cautious approach, to protect faculty and our academic mission,” Wickert was quoted saying in the minutes. “This past year has been a tough one. Faculty have been trolled and doxed. There have been media requests for syllabi for programs. The public and the legislature have questioned the value of tenure. Lectures have been videotaped, and there have been attacks on the arts and humanities.”
The intent of the guidance is not necessarily to forestall a potential lawsuit, the general counsel added, but also to avoid a scenario where, for example, someone takes something from a class out of context and shares it widely.
“A picture of a slide from training is sent to a newspaper with a particular political bent, and a firestorm develops,” Michael E. Norton, the general counsel, was quoted as saying in the minutes. “ISU is trying to reduce the risk of that happening to you.”
Faculty members spoke up with questions. The language in the law specifically targets mandatory trainings. Why, they wondered, was the university interpreting it to cover their classes, especially since other public universities in Iowa had not done so? Norton responded that the word “training” is not defined in the law.
At the meeting, Behnken objected to Norton’s invocation of “risk.” There has always been a chance that faculty members would be attacked for what they say, he said. Many accept that as part of the job.
“When ISU administrators emphasize the element of risk, they stoke this fear,” Behnken said, according to the minutes, “and it does not make for good instruction or good education.” Norton responded that faculty members and lawyers have different roles at the university.
Another faculty member wondered if the university would defend instructors who had been attacked.
“If the faculty member acted appropriately, ISU will marshal resources in the faculty member’s defense,” the provost said, according to the minutes.
Faculty members don’t want it to come to that, which may make some especially cautious when deciding how to teach topics such as race and racism, said Cullen Padgett Walsh, a teaching professor of philosophy and religious studies.
“They make it really clear that the legislature is watching us very closely,” he said of Iowa’s streak of legislative action challenging higher education. “I think that is affecting some faculty.”
At North Florida College, a small campus in Madison, Fla., faculty and academic-staff members were required to attend a meeting about the law, according to documents obtained by the Foundation for Individual Rights and Expression and posted online. A lawyer, Robert J. Sniffen, showed them examples of ways that they could and could not talk about race in courses such as history and sociology, according to a PowerPoint presentation that Sniffen shared at the meeting. In one example, on teaching the civil-rights movement in a history class, a slide stated that a history instructor was permitted by the law to show the connection between “instances of blatant racism under Jim Crow laws and the effect that they had on African Americans.”
But the instructor should not “make a sweeping statement that white people were responsible for enacting these laws,” according to slides from the presentation. Instructors “should avoid making any statements that assign the blame for an act on any particular race,” a slide said. They could instead explore the motives of “specific individuals” who had enacted Jim Crow laws.
The PowerPoint presentation also recommended that teachers begin classroom discussions with a disclaimer: “While such discussions are important to your education, the opinions stated by your fellow students do not reflect those of the college.” Sniffen declined to comment.
As a campus leader, it can be tempting to follow a lawyer’s advice to the letter, said Holden Thorp, a former chancellor of the University of North Carolina at Chapel Hill who is now editor in chief of Science.
“The lawyer’s going to say, ‘This is the stance you have to take,’” he said. “The administrator has to decide: Do they do that, or do they stand up for the principles that got them into higher education in the first place? They’re asking that question every single day.”
If they choose their principles, Thorp said, they might get fired.
The recent spate of laws that attempt to restrict state-supported speech are often vague, said Adam Steinbaugh, the FIRE lawyer who obtained the North Florida documents. Or it may be unclear how and whether they apply to campuses. College leaders may feel strong incentives to interpret the laws to cover as much as possible.
But they should recognize that there are other laws at play, Steinbaugh said, like the Constitution itself. “When they are interpreting a vague statute,” he said, “they should interpret it in a way that protects the First Amendment rights of students and faculty.”
Free-speech advocates pointed to the University of Iowa as an example of an institution that handled a potentially intrusive state law well. Liz Tovar, executive officer and associate vice president for diversity, equity, and inclusion, wrote in a message to the campus in 2021 that “HF 802 would have zero impact within the classroom, as academic instruction is specifically exempted from the legislation.”
The university’s implicit-bias training also would not end “because it does not ‘teach, advocate, act upon, or promote’ that an individual is inherently racist, sexist, or oppressive due to their race or sex,” she said, quoting from the law.
“You get to a point where you have to stick up for it,” said Leontina Hormel, a sociology professor. “And just kind of poke the lion and say, ‘OK, let’s figure out where the line really is and where the courts really stand.’”
In professors’ fears, an earlier episode at Boise State University looms large. In 2021 an unidentified “concerned community leader” contacted the university, claiming to have seen a video of a white student who was made to cry in class during a discussion about white privilege. The university responded by suspending a series of diversity and ethics courses where officials speculated the incident had taken place. But an investigation revealed that the alleged incident most likely didn’t happen.
Many professors already worry that students might record classroom conversations about controversial topics like abortion, sharing them without context or intentionally misconstruing them. Now, at Idaho, those fears have taken on a new weight.
“It almost makes you feel afraid of your students,” said Ryanne Pilgeram, a sociology professor. “Like, could this student turn me in, and I’m going to be guilty of a felony?”
Not everyone at the University of Idaho took issue with the general counsel’s memo, even if most disagreed with the law. Lysa Salsbury, director of the campus Women’s Center, felt demoralized by the decision to overturn Roe v. Wade. But she appreciated the university’s attempt to issue guidance on the law, even as it became the focus of negative news coverage.
“It was hard for me to see the university just being trashed left, right, and center,” Salsbury said, “because of essentially what was just a massive misunderstanding. The intention for that original memo was not at all to gag employees. It really was to provide clarification on employees’ responsibilities under the law.”
Staff members who work in health-related fields, including Salsbury, had been asking for guidance on the new legal landscape for abortion and contraception, she said. When the memo came out, she watched her inbox fill up with requests for interviews from news outlets, including The New Yorker and Rolling Stone. Then she saw headlines like “University of Idaho Issues Gag Order on Abortion,” and felt frustrated that she couldn’t defend the place where both of her children got degrees.
But Salsbury could understand why some of her colleagues were concerned that the university was not standing up for them and their students. She felt the tone of the memo could have been more sensitive.
She contributed to a follow-up document meant to clarify the university’s position. The new memo stated that the university “encourages faculty to engage in educational discussions on topics of their choice,” but it reiterated that the vagueness of the law could put them in the cross hairs. Employees should “know they can choose to assess for themselves what level of risk they are comfortable with when determining what they teach or talk about in performing their job,” it said.
Smith, the Idaho student, said her campus is politically divided. The student-body president, Tanner McClain, believes the Supreme Court was right to overturn Roe. Smith grew up in Kooskia, Idaho, a small town that she described as very conservative. But she adopted the more liberal worldview of her parents, who once traveled the country as part of a circus.
“It always put me into a position where I had to kind of look at things from both angles,” Smith said. “I would hear one thing at school and hear one thing at home, and they were very, very different.”
The experience taught her to look for common ground. She reached out to McClain to discuss her view that the Idaho law infringes on freedom of speech.
Smith and another student wrote a resolution protesting the law, and it was presented to the student government. At first, McClain didn’t know what he thought about it. “I believe that it’s the responsibility of state legislators to enact policies protecting the lives of unborn children,” McClain said. “At the same time, I also am a staunch supporter of the freedom of expression and speech, especially on campus.”
McClain, a philosophy and political-science major, considered how hard it would be to have a conversation in class about the ethics of abortion, or the laws surrounding it, with someone who could not plainly describe why the procedure should be allowed. He felt the law’s wording had the potential to infringe on what people could say.
“I can’t learn the other side of the argument without talking about abortion,” he said. “How can I defend my pro-life stance without fully understanding both sides of the argument?”
He voted in favor of the resolution. It passed unanimously.
For now, such efforts are largely symbolic. In some corners, the effect of the law and the university’s response have been apparent.
Jessica H., a senior who is queer, hasn’t always felt welcome in Idaho. Though the flagship campus has felt a bit safer to them than where they grew up, Jessica said the law and the memo had sent a clear signal. They work in a lab, so the university’s guidance applies to them. They won’t talk about abortion.
“I can’t say anything on the topic,” they said. “I haven’t said anything on the topic.”
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