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Free Speech

Indiana Professors Lack Standing to Challenge Indiana "Intellectual Diversity" Statute

Eugene Volokh | 8.14.2026 1:48 PM

Some excerpts from yesterday's longish McDonald v. Trustees of Indiana Univ., written by Seventh Circuit Judge Joshua Kolar and joined by Judges Frank Easterbrook and Doris Pryor:

Senate Enrolled Act 202 added a provision to Indiana's education code titled "The Protection of Free Inquiry, Free Expression, and Intellectual Diversity." … [The Act's] "promotion provision" … requires universities to establish a policy "that a faculty member may not be granted tenure or a promotion" if the university determines 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 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 Act's] "review provision" … requires a university to review tenured faculty every five years to determine whether they have met certain criteria. These criteria include "whether the faculty member" has:

(1) Helped the institution foster a culture of free inquiry, free expression, and intellectual diversity within the institution.

(2) Introduced students to scholarly works from a variety of political or ideological frameworks that may exist within the [university's] curricula[.]

(3) While performing teaching duties within the scope of the faculty member's employment, refrained from subjecting students to views and opinions concerning matters not related to the faculty member's academic discipline or assigned course of instruction.

The act defines some but not all of the key terms in these provisions. "Faculty member" means "an employee of an institution whose employment duties include teaching students of the institution." And "[i]ntellectual diversity" means "multiple, divergent, and varied scholarly perspectives on an extensive range of public policy issues." But the act does not define "free inquiry" or "free expression."

The act also mandates that state-run universities give the required policies teeth. To enforce the........

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