At the University of Idaho, administrators can pass out condoms to prevent the spread of STDs but not to prevent pregnancy. Why? The University has adopted an extreme set of policies as part of an overzealous attempt to comply with an Idaho state bill banning the use of public funds for abortion—violating faculty free speech rights in the process.
Last week, the University of Idaho's General Counsel released a policy aimed at directing faculty and staff behavior following the enforcement of Idaho's "No Public Funds for Abortion Act." However, the policy appears to go beyond the requirements of Idaho law, instead banning faculty and staff from expressing opinions on the subject of abortion. The university's policy not only is unconstitutional but also shows how free speech is often on the chopping block when vague laws and nervous administrators collide.
In 2021, the Idaho Legislature passed a bill prohibiting the use of public funds to "provide, perform, or induce an abortion; assist in the provision or performance of an abortion; promote abortion; counsel in favor of abortion; refer for abortion; or provide facilities for an abortion or for training to provide or perform an abortion." The law also bans public university tuition and fees from being used for these purposes. Further, public university–run health clinics and university employees are also prohibited from providing emergency contraception, except in the case of rape, in addition to other limits on their conduct.
The law is vague, and it is unclear whether the bill would pass First Amendment muster. Whether the law is constitutional would primarily depend on an interpretation of the word "promote." As Eugene Volokh wrote in The Volokh Conspiracy this week, "In this sort of context, it seems to me, 'promote' does not refer to abstract advocacy, such as the statement 'I believe that abortion should be legal' or even 'I encourage you to obtain an abortion.' It refers to the recommendation to a particular person to get an abortion."
In that case, banning the "promotion" of abortion is likely compliant with the First Amendment. As Volokh argues, the act of "promoting" abortion, applied to mean specifically urging someone to obtain an abortion "would probably also be constitutionally unprotected [speech], at least if it's urging an abortion in Idaho, since that would be solicitation of a crime."
However, the University of Idaho appears to interpret "promotion" to include any action that appears to show a favorable opinion of abortion. In doing so, the school has banned expression clearly protected by the First Amendment—which, as a public institution, it is directly prohibited from doing.
The University of Idaho's policy goes beyond what is explicitly banned in law. In addition to banning employees from promoting abortion, counseling in favor of it, providing referrals for abortion, or contracting with abortion providers, the university's policy curtails faculty speech in typical classroom discussions.
"Classroom discussion of [abortion] 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," wrote the university's General Counsel. "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."
The university's "neutrality" mandate also applies to classroom discussions of contraception. The university justifies this by invoking an existing Idaho law that prohibits anyone who isn't a doctor or medical professional acting under a doctor's orders from distributing or advertising contraceptives. The university defends its interpretation of the law—an interpretation that also led the school to allow university employees to provide condoms to students to prevent the spread of STDs but not for pregnancy prevention—by arguing that relevant state law is "unclear and untested in the courts. Since violation is considered a felony, we are advising a conservative approach here, that the university not provide standard birth control itself."
Such a restriction on academic freedom clearly violates the First Amendment. "No statute can authorize a public university to censor pedagogically relevant classroom discussion," said Adam Steinbaugh, an attorney with the Foundation for Individual Rights in Education, in a press release about the policy. "Speech about abortion—legal or not—cannot be limited based on its viewpoint."
The University of Idaho is clearly afraid of scrutiny from overzealous prosecutors. However, fear does not justify silencing academic freedom. "U of I's sweeping policy directly contravenes the university's legal obligations and impermissibly chills in-class speech by placing faculty in perpetual fear of punishment for their protected expression," wrote Graham Piro, a program officer at FIRE, in a letter addressing the university. "It does not take a significant stretch of the imagination to see how the university's guidance will adversely impact classroom instruction. For example, a political science professor publishing a public policy argument that abortion should be lawful will have to self-censor to ensure the discussion is not perceived as being 'in favor of abortion.'"
The University of Idaho's actions show what can happen when nervous university lawyers are put in charge of interpreting vague state laws. Ultimately, when a university places its desire to avoid controversy over protecting academic freedom, First Amendment rights are often the first to go.