Case 1:24-cv-00772-SEB-MJD Document 1 Filed 05/07/24 Page 1 of 13 PageID #: 1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

STEVEN ALAN CARR and )

DAVID G. SCHUSTER, )
)
Plaintiffs, ) 1:24-cv-772
)
v. )
)
TRUSTEES OF PURDUE )
UNIVERSITY, in their official )
capacities, )
)
Defendants. )

Complaint for Declaratory and Injunctive Relief / Notice of Claim of

Unconstitutionality of an Indiana Statute

Introduction

1. Indiana Code § 21-39.5 et seq. (eff. July 1, 2024), part of Senate Enrolled Act 202

(“S.E.A. 202”), imposes a variety of requirements and restrictions on faculty members at

Indiana’s public colleges and universities. Among other things, it requires that faculty

members be denied tenure or promotion, and threatens them with discipline through and

including termination, if they are deemed “unlikely” to “foster a culture of free inquiry,

free expression, and intellectual diversity” within their institution, or if they are deemed

to have failed to foster such cultures in the past. They are threatened with the same

consequences if they are deemed unlikely to or to have failed to “expose students to

scholarly works from a variety of political or ideological frameworks that may exist

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within and are applicable to the faculty member’s academic discipline.” The statute

requires that tenured faculty members be formally reevaluated every five years for

compliance with these mandates, and it requires that colleges and universities establish

a mechanism for students and employees to, at any time, report faculty whom they

believe to be noncompliant. Those reports may then result in immediate discipline,

including but not limited to demotion, salary reduction, and termination. This statute

violates both the First and Fourteenth Amendments to the United States Constitution.

The plaintiffs, tenured faculty members at Purdue University Fort Wayne, are entitled to

a declaration that the statute is unconstitutional and an injunction preventing its

enforcement.

Jurisdiction, venue, cause of action

2. This Court has jurisdiction of this case pursuant to 28 U.S.C. § 1331.

3. Venue is proper in this district pursuant to 28 U.S.C. § 1391.

4. Declaratory relief is authorized by 28 U.S.C. §§ 2201, 2202 and by Rule 57 of the

Federal Rules of Civil Procedure.

5. This action is brought pursuant to 42 U.S.C. § 1983 to redress the deprivation under

color of state law of rights secured by the Constitution of the United States.

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Parties

6. Steven Alan Carr is an adult resident of Allen County, Indiana and a tenured

faculty member at Purdue University Fort Wayne and will be teaching there in the 2024-

2025 school year.

7. David G. Schuster is an adult resident of Allen County, Indiana, although through

August 2024, he temporarily resides in California. He is a tenured faculty member at

Purdue University Fort Wayne and will be teaching there in the 2024-2025 school year.

8. The Board of Trustees of Purdue University is its executive body, charged with

taking “all acts necessary and expedient to put and keep Purdue University in operation.”

Ind. Code § 21-27-7-4. The individual members of the Board are sued in their official

capacities.

Legal background

9. Senate Enrolled Act 202 (“S.E.A. 202” or “the Act”) amends the Indiana Code

concerning higher education.

10. Section 11 of the Act creates a new statutory article, to be codified at Indiana Code

§ 21-39.5 et seq., entitled “State Educational Institutions: The Protection of Free Inquiry,

Free Expression, and Intellectual Diversity.”

11. The statutory prohibitions and requirements imposed by this article apply to state

higher educational institutions (referred to in the Act as “institutions”), including Purdue

University and its Board of Trustees. Ind. Code § 21-39.5-1 et seq. (eff. July 1, 2024).

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12. The portion of the Act to be codified at Indiana Code § 21-39.5-2-1(b) (eff. July 1,

2024) provides in relevant part as follows:

[E]ach board of trustees of an institution shall establish a policy that

provides that a faculty member may not be granted tenure or a promotion
by the institution if, based on past performance or other determination by
the board of trustees, the faculty member is:
(1) unlikely to foster a culture of free inquiry, free expression, and
intellectual diversity within the institution; [or]
(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.

13. The statutory terms “free inquiry” and “free expression” are not defined, either in

this statutory provision or elsewhere in the Code, but the term “intellectual diversity” is

defined as “multiple, divergent, and varied scholarly perspectives on an extensive range

of public policy issues.” Ind. Code § 21-39.5-1-5 (eff. July 1, 2024).

14. S.E.A. 202 further provides, in relevant part:

Not later than five (5) years after the date that a faculty member is granted
tenure by an institution and not later than every five (5) years thereafter,
the board of trustees of an institution shall review and determine whether
the faculty member has met the following criteria:
(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 curricula
established by the:
(A) board of trustees of the institution under IC 21-41-2-1(b);
or
(B) faculty of the institution acting under authority delegated
by the board of trustees of the institution.

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(3) While performing teaching duties within the scope of the faculty
member’s employment, refrained from subjecting student to views
and opinions concerning matters not related to the faculty member’s
academic discipline or assigned course of instruction.
(4) Adequately performed academic duties and obligations.
(5) Met any other criteria established by the board of trustees.

Ind. Code § 21-39.5-2-2(a) (eff. July 1, 2024).

15. The Act requires each institution to “adopt a policy that establishes disciplinary

actions, including (1) termination; (2) demotion; (3) salary reduction; (4) other

disciplinary action as determined by the institution; or (5) any combination of

subdivisions (1) through (4)” that “the institution will take if the board of trustees

determines in a review conducted under subsection (a) that a tenured faculty member

has failed to meet one (1) or more of the criteria described in [Indiana Code § 21-39.5-2-2]

(a)(1) through (a)(5).” Ind. Code § 21-39.5-2-2(d) (eff. July 1, 2024).

16. An institution is also required, before “renew[ing] an employment agreement

with,” “mak[ing] a bonus decision regarding,” or “complet[ing] a review or performance

assessment” of a faculty member, to “give substantial consideration to the faculty

member’s…performance regarding the criteria described in section [Indiana Code § 21-

39.5-2-2] (a)(1) through [](a)(5) of this chapter.” Ind. Code § 21-39.5-2-3(b) (eff. July 1,

2024).

17. Each institution is required to establish and communicate a procedure by which

both students and employees may submit complaints that any faculty member “is not

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meeting the criteria described in [Indiana Code § 21-39.5-2-2] (a)(1) through [](a)(5).” Ind.

Code § 21-39.5-2-4(a)(1), (2) (eff. July 1, 2024).

18. If any complaints are received, the Act requires the institution to refer them to

“appropriate human resource professionals and supervisors for consideration in

employee reviews and tenure and promotion decisions.” Ind. Code § 21-39.5-2-4(a)(3)

(eff. July 1, 2024).

Factual allegations regarding the plaintiffs

19. Plaintiff Steven A. Carr is a Professor of Communication and is the Graduate

Program Director in the Department of Communication at Purdue University Fort

Wayne.

20. He was awarded tenure in 2000 and was awarded a full professorship in 2016.

21. Professor Carr is also the Director of the Institute for Holocaust and Genocide

Studies at Purdue University Fort Wayne, the first and only academic center in Indiana

devoted exclusively to the study of the Holocaust and other genocides.

22. In his role as a professor in the Communications Department, he teaches courses

on media and cultural studies, and he is a film historian by training.

23. In his role as the Graduate Program Director in the Department of

Communication, he advises approximately 20 graduate students in the Department,

covering everything from admission to the completion of their final degree requirements.

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24. In his role as director of the Institute for Holocaust and Genocide Studies, he enacts

the Institute’s mission, including supporting and promoting teaching and research about

the Holocaust and other genocides, and promoting public engagement in global genocide

prevention efforts.

25. He is currently scheduled to teach 4 courses over the 2024/2025 academic year.

26. Plaintiff David G. Schuster is an Associate Professor in the Department of History

at Purdue University Fort Wayne.

27. He teaches courses in U.S. history, including the history of U.S. culture and

medicine.

28. He will teach 6 courses over the 2024/2025 academic year.

29. He was awarded tenure in 2012.

30. Professor Schuster plans to pursue, and is working toward, promotion to full

professorship.

31. The requirements imposed by S.E.A. 202, described above, apply to Professors

Carr and Schuster, as they are “faculty members” of Purdue University as defined by the

statute: they are employees of a state educational institution “whose employment duties

include teaching students of the institution.” Ind. Code § 39.5-1-3.

32. The statute requires Purdue’s board of trustees to deny promotions to the plaintiffs

if they are deemed unlikely to “foster a culture of free inquiry, free expression, and

intellectual diversity within the institution.” Ind. Code § 21-39.5-2-1(b)(1).

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33. The statute also provides for the plaintiffs to be subject to discipline including, but

not limited to, termination, demotion, and salary reduction if they are deemed, as part of

a promotion or other performance review, the post-tenure review mandated by the

statute, or in response to a student or employee complaint, to have failed to foster such a

culture. Ind. Code § 21-39.5-2-2(a)(1).

34. Neither Professor Carr nor Professor Schuster knows what it means to “foster a

culture of free inquiry, free expression, and intellectual diversity within the institution.”

The plaintiffs therefore cannot discern what they are required to do or refrain from doing

to avoid running afoul of the statute.

35. Given the statute’s uncertainty, to avoid running afoul of the statute, the plaintiffs

believe they could be compelled to speak or prohibited from speaking in violation of their

First Amendment rights or risk adverse employment actions, through and including

termination.

36. For example, as part of his courses surveying United States history in the post-civil

war period, Professor Schuster teaches about the “culture wars” surrounding the LGBTQ

rights movement in the 1990s. He is aware that some academics teach about this

movement as embodying the rise of a “homosexual agenda,” during which, according to

them, LGBTQ people were attempting to indoctrinate students and others with ideas

about homosexuality. Professor Schuster does not believe that this “divergent”

perspective is accurate and believes that teaching this perspective would be harmful to

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his students. He thus does not believe he should be required to teach this perspective,

and while he has in the past invited students to discuss this perspective during office

hours, he does not devote class time to it.

37. As another example, Professor Schuster teaches about slavery and its legacy. He

does not believe he should be required to teach any number of “divergent” scholarly

perspectives regarding slavery, including the perspective that was once dominant in this

field—with which he strongly disagrees—that slavery ultimately benefitted African-

American people.

38. Professor Carr engages in teaching about the Holocaust through his work at the

Institute. “Divergent” perspectives regarding the existence and scope of the Holocaust

exist, ranging from denial that the Holocaust occurred to “revisionist” accounts

challenging the scope and causes of that genocide. Professor Carr would not teach those

“perspectives,” but the language of the statute would appear to require him to do so.

39. As another example, Professor Carr recently taught a class about the eugenics

movement, including legislation involving forced sterilization passed in Indiana in 1907.

He does not believe that he should be required to teach, for example, the “divergent”

scholarly perspective that racially based forced sterilization could ever be appropriate or

even defensible.

40. Although Professors Carr and Schuster both already seek to foster a culture of free

inquiry in their classrooms, this does not mean that they believe it is appropriate to

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provide equal time or attention to all lines of questioning. They exercise their judgment

and academic freedom to determine when further inquiry on a subject is no longer

desirable or appropriate, and they have no way of knowing whether this type of in-the-

moment decision-making will subject them to discipline or other employment

consequences.

41. S.E.A. 202 requires the Purdue board of trustees to deny promotions to the

plaintiffs if they are deemed “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,” Ind. Code § 21-39.5-2-1(b)(2), and it subjects

them to discipline including termination, demotion, and salary reduction if they are

deemed not to have “introduced students to scholarly works from a variety of political

or ideological frameworks that may exist within the curricula” established by the board

of trustees or institution’s faculty, Ind. Code § 21-39.5-2-2(a)(2).

42. The plaintiffs have no idea what this means and cannot discern what they are

required to do or refrain from doing to avoid running afoul of the Act.

43. Given the statute’s uncertainty, to avoid running afoul of the statute, the plaintiffs

believe they could be compelled to speak or prohibited from speaking in violation of their

First Amendment rights or risk adverse employment actions, through and including

termination. The examples cited above at 36-40 are equally illustrative as to the First

Amendment consequences of this provision.

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44. The speech activities of the plaintiffs are protected by the First Amendment, as

they retain the academic freedom to determine the content of their instruction, free from

interference by the State.

45. Given the breadth and vagueness of Indiana Code § 21-39.5-2-2(a)(1) and (a)(2),

plaintiffs are subject to the serious consequences noted in the statute if they continue to

teach as they have for years. This compulsion to speak, or not to speak, as directed by

the statute or, alternatively, to face the penalties imposed by the statute, violates the First

Amendment.

46. The speech in which the plaintiffs seek to engage is in no way antithetical to the

interests of their employer.

47. The plaintiffs’ desire to refrain from certain speech is in no way antithetical to the

interests of their employer.

48. The interests of the plaintiffs in engaging in and refraining from protected speech

greatly outweighs any countervailing interest by the State.

49. At all times defendants have acted and have failed to act under color of state law.

50. Plaintiffs are being threatened with and are being caused irreparable harm for

which there is no adequate remedy at law.

Legal claims

51. Indiana Code §§ 21-39.5-2-1(b)(1), (2) and Indiana Code §§ 21-39.5-2-2(a)(1), (2)

(eff. July 1, 2024) violate the First Amendment, to the extent that they impinge upon the

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plaintiffs’ academic freedom to determine the content of and deliver their instruction,

free from interference by the State.

52. Indiana Code §§ 21-39.5-2-1(b)(1), (2) and Indiana Code §§ 21-39.5-2-2(a)(1), (2)

(eff. July 1, 2024) violate the First Amendment and the Due Process Clause of the

Fourteenth Amendment in that they are impermissibly vague.

Request for relief

WHEREFORE, plaintiffs request that this Court:

a. accept jurisdiction of this case and set it for hearing at the earliest
opportunity;

b. declare that Indiana Code §§ 21-39.5-2-1(b)(1), (2) and Indiana Code §§ 21-
39.5-2-2(a)(1), (2) are unconstitutional for the reasons noted above;

c. enter a preliminary injunction, later to be made permanent, enjoining

Indiana Code §§ 21-39.5-2-1(b)(1), (2) and Indiana Code §§ 21-39.5-2-2(a)(1),
(2);

d. award plaintiffs their costs and reasonable attorneys’ fees pursuant to 42

U.S.C. § 1988;

e. award all other proper relief.

Stevie J. Pactor
Kenneth J. Falk
Gavin M. Rose
ACLU of Indiana
1031 E. Washington St.
Indianapolis, IN 46202
317/635-4059
fax: 317/635-4105
[email protected]
[email protected]
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grose@ aclu-in.org

Attorneys for Plaintiffs

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