“I never thought teaching in the United States would feel like this”
The University of Idaho’s general counsel last Friday afternoon sent out an email to professors and staff warning them about how to comply with a 2021 Idaho abortion law, leaving educators in confusion and putting a “chilling effect” on speech.
The memo states that the law prohibits university employees from promoting abortion, counseling in favor of abortion, and advertising or promoting services for abortion or for the prevention of conception, among other things. It also specifies that the penalties for violating this law can include loss of their jobs, permanent bar from future state employment and even felony convictions.
The memo specified that the law applies to classroom discussions of topics related to abortion, even if they’re relevant to what’s being studied.
“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 memo reads.
The email has set into motion frantic text messages and “a sense of general panic” among faculty, according to one professor who spoke on the condition of anonymity for fear of losing their job.
“People are afraid to even put it on social media,” they said. “Like, are we even allowed to say the word ‘abortion’ on campus?” The professor said they may have to take out assignments related to reproductive justice that were on the syllabus for this semester.
“I never thought teaching in the United States would feel like this,” they said.
“Blatantly unconstitutional”
Mike Satz, a former law professor and associate dean at University of Idaho, called some of the directives in the memo blatantly unconstitutional and said, “it runs against all principles of academic freedom.” He pointed to the parts of the law that says university employees cannot “counsel in favor of abortion” or “promote abortion” as speech that is protected by the First Amendment. Satz said the memo violates the rights of students to get information and the rights of faculty to give information.
What’s worse is the chilling effect of the memo, he said. Even though it’s “blatantly unconstitutional,” the memo is likely to make educators and staff overcautious to the point of avoiding the topic altogether. This alone can also be the basis for a first amendment complaint, Satz said.
Emily Walton, a co-founder of The Idaho 97 Project along with Satz, wondered how this law would affect student activities and speech. It may even pave the way for future restrictions. “This sets a precedent,” Walton said. “At some point another person can come along and say, ‘Here's more things you can't talk about.’”
Satz said the general counsel of the university isn’t incorrectly and unconstitutionally interpreting the law in its memo: it’s the law itself that’s unconstitutional. “I’m pretty sure the lawyers know that when they wrote this, they’re in a really tough bind.”
The law in question is the No Public Funds for Abortion Act, which prohibits any taxpayer money from funding abortions or the promotion of abortions and to prohibit public employees from encouraging abortions. The law was passed by the Idaho Legislature in 2021, and went into effect in July.
According to Jodi Walker, executive director of communications for the university, the memo was sent to help faculty and staff understand how the law could affect them. Walker said that while the law is vague on what promoting abortion means, it is clear that university employees are paid with public money.
“Employees engaging in their course of work in a manner that favors abortion could be deemed as promoting abortion,” Walker said in a statement sent to RANGE. “While abortion can be discussed as a policy issue in the classroom, we highly recommend employees in charge of the classroom remain neutral or risk violating this law.”
University of Idaho legal guidance on abortion speech by RANGE Media on Scribd
