That is from an email from the University of Idaho’s General Counsel to the university’s employees on the subject of the state’s abortion laws, particularly a 2021 law prohibiting the use of public funds for abortions. Much of the email concerns the impermissibility of university employees encouraging, performing, or contributing to the provision of abortions while at work. But the email also includes guidance on teaching about abortion.
It is a pity that the university administration did not write to faculty promising to defend their academic freedom. Instead, they promoted an interpretation of the law that threatens academic freedom, and in doing so, laid the groundwork for accusations that faculty who discuss the ethical and political dimensions of abortion knowingly violated the law.
Inside Higher Ed reports further on the story here.
Many applied ethics courses include the moral and legal permissibility of abortion as topics, with the reading, presentation, and analysis of arguments for various positions. It is unclear how the analysis of such arguments can proceed in a way that is likely to strike interested observers as “neutral.” So it is unclear how the General Counsel’s guidance is compatible with the academic freedom of instructors teaching these arguments, or with the academic freedom of instructors who are deterred from teaching about them for fear that the university will not defend them against charges of violating the law.
Faculty are permitted, for example, to have “classroom discussions on topics related to abortion when limited to discussions and topics relevant to the class subject.” But during such discussions, there must be “instructor neutrality.” The General Counsel writes:
“Academic freedom is not a defense to violation of law, and faculty or others in charge of classroom topics and discussion must themselves remain neutral on the topic and cannot conduct or engage in discussions in violation of these prohibitions without risking prosecution.”
Further, according to the email, “Employees who wish to counsel, promote or advocate in favor of abortion must do so outside of the performance of their job duties and without use of any university resources.” Does this mean that faculty may not write papers or books in which they argue for the moral and legal permissibility of abortion?
Classroom discussion of the topic should be approached carefully. While academic freedom supports classroom discussions of topics related to abortion, these should be limited to discussions and topics relevant to the class subject. The laws discussed above, specifically including those addressing promoting abortion, counseling in favor of abortion and referring for abortion, will remain applicable. Academic freedom is not a defense to violation of law, and faculty or others in charge of classroom topics and discussion must themselves remain neutral on the topic and cannot conduct or engage in discussions in violation of these prohibitions without risking prosecution.
