Idaho AG: Anti-abortion law does not restrict academic speech at public universities

In a positive development for students and faculty at public colleges and universities across Idaho, the state attorney general recently issued an opinion recognizing the First Amendment protects the scholarship and teaching of public university faculty — including when “discussing abortion in the classroom or engaging in scholarship . . . supporting abortion.” That opinion refutes guidance issued by the University of Idaho that drew national attention, including from President Biden, last year.

The opinion comes in response to state Rep. Judy Boyle’s letter requesting clarification on the law’s application to higher education. Idaho Attorney General Raúl Labrador said the law “does not prohibit university employees from speaking on abortion in their academic teaching and scholarship, even if that teaching or scholarship could be viewed as supporting abortion or abortion rights in general.”

FIRE wrote University of Idaho officials in September 2022 warning them the state’s “No Public Funds for Abortion Act” could not constitutionally be applied to faculty members’ academic speech. The university’s guidance — which warned that faculty members risk imprisonment and termination if their classroom discussion does not reflect “neutrality” — sparked national controversy. But the university held firm. 

We're pleased to see that Idaho officials recognize the import of the First Amendment, but recognition of faculty members’ core First Amendment rights should not require a lawsuit and an opinion of the Attorney General. 

“Faculty members don’t shed their First Amendment rights at the classroom door,” said FIRE attorney Adam Steinbaugh. “It isn’t just misguided to keep faculty from speaking freely — it’s illegal.”

Citing the landmark Supreme Court ruling Keyishian v. Board of Regents, as well as the U.S. Court of Appeals for the Sixth Circuit’s ruling in Meriwether v. Hartop, Labrador concluded that whatever authority the government may have in regulating abortion itself, that authority does not extend to faculty members’ academic speech.

FIRE demands University of Idaho retract policy limiting faculty speech on abortion

Press Release

Today, the Foundation for Individual Rights and Expression sent a letter to U of I officials warning that the university’s new policy regulating faculty speech about abortion is unconstitutional.

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“In the same way that a public university cannot discipline a professor for failing to comply with the university’s preferred pronoun policy in the professor’s classroom,” Labrador wrote, the First Amendment means it would “likely [be] unconstitutional for a state to prohibit professors from discussing abortion in the classroom or engaging in academic scholarship relating to abortion.”

This clarifying opinion from the attorney general is exactly the kind of solution for which FIRE has advocated since the University of Idaho issued its guidance, as its suggestion that faculty could face criminal consequences or job losses chills academic freedom. As Chief Justice Earl Warren wrote in Sweezy v. New Hampshire, “Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die.”

We're pleased to see that Idaho officials recognize the import of the First Amendment, but recognition of faculty members’ core First Amendment rights should not require a lawsuit and an opinion of the Attorney General. We will continue to monitor the situation to ensure the state’s public colleges and universities adhere to the opinion.