The Volokh Conspiracy
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According to various reports, the general counsel at the University of Idaho has issued guidance to university employees regarding the state's new abortion law. Of particular interest is the guidance to university faculty about their teaching.
Classroom Discussions. 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.
I have been able to confirm with faculty at Idaho that this report about the general counsel's guidance is accurate.
This is perhaps an effort to implement House Bill 220, which prohibits the use of public funds to "promote abortion." In the context of a bill that is generally concerned with the provision of or referral to abortion services, this may be an aggressive interpretation of the law, but perhaps the caution is warranted.
The academic freedom implications are disturbing. Set aside the problem of faculty introducing abortion-related discussions into a class in which such topics are not germane, there are classes in which abortion-related classroom discussions clearly are germane and appropriate. A moral philosophy class might well discuss the ethics of abortion. A constitutional law class might well discuss the constitutionality of abortion. A health policy class might well discuss the public health consequences of abortion and abortion policy. A women's studies class might well discuss the effect of abortions and abortion policies on the women's movement or women's status in society.
Can a state require that professors at public universities adhere to instructional "neutrality" in relation to the topics that they teach? Certainly from an academic freedom perspective, they cannot (the First Amendment issues are potentially complicated, but I think best understood as prohibiting such a requirement). Standard and widely adopted AAUP principles call for universities to respect professorial freedom in the classroom.
Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject.
Professors have traditionally had the freedom to stake out controversial positions in the classroom and advocate for a certain perspective on the topics being taught. A good professor will certainly allow discussion and debate regarding how to view such matters, but professors should not be expected to be neutral on such questions as, for example, whether Dobbs was correctly decided or whether abortion is a moral wrong.
If the Idaho law actually requires such instructional neutrality in regards to abortion, it poses a serious threat to academic freedom in the state universities of Idaho.