Case 1:24-cv-00772-SEB-MJD Document 19 Filed 05/20/24 Page 1 of 16 PageID #: 56
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
STEVEN ALAN CARR, )
DAVID G. SCHUSTER, )
JAMES SCHEURICH, )
DAVID MCDONALD, )
)
Plaintiffs, ) 1:24-cv-772-SEB-MJD
)
v. )
)
TRUSTEES OF PURDUE )
UNIVERSITY, in their official )
Capacities; )
TRUSTEES OF INDIANA )
UNIVERSITY, in their official )
capacities, )
)
Defendants. )
Amended 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
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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
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, Indiana
University Indianapolis, and Indiana University Bloomington 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, where he will teach 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. James Scheurich is an adult resident of Marion County, Indiana. He is a tenured
faculty member at Indiana University Indianapolis and will be teaching there in the 2024-
2025 school year.
9. David McDonald is an adult resident of Monroe County, Indiana. He is a tenured
faculty member at Indiana University Bloomington and will be teaching there in the 2024-
2025 school year.
10. 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 et seq. The individual members of the Board are sued in their official
capacities.
11. The Trustees of Indiana University comprise the University’s governing body and
are charged with control of Indiana University. Ind. Code § 21-27 et seq.
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Legal background
12. Senate Enrolled Act 202 (“S.E.A. 202” or “the Act”) amends the Indiana Code
concerning higher education.
13. 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.”
14. 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 and Indiana University and its Board of Trustees.
Ind. Code § 21-39.5-1 et seq. (eff. July 1, 2024).
15. 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.
16. 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
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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).
17. 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.
(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).
18. 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
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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).
19. 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).
20. 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
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).
21. 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
22. 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.
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23. He was awarded tenure in 2000 and was awarded a full professorship in 2016.
24. 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.
25. 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.
26. 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.
27. 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.
28. He is currently scheduled to teach 4 courses over the 2024/2025 academic year.
29. Plaintiff David G. Schuster is an Associate Professor in the Department of History
at Purdue University Fort Wayne.
30. He teaches courses in U.S. history, including the history of U.S. culture and
medicine.
31. He will teach 6 courses over the 2024/2025 academic year.
32. He was awarded tenure in 2012.
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33. Professor Schuster plans to pursue, and is working toward, promotion to full
professorship within the next several years.
34. Professor James Scheurich is a Chancellor’s Professor in the School of Education
at Indiana University Indianapolis.
35. Professor Scheurich was awarded tenure in approximately 1999, while a professor
at the University of Texas, Austin.
36. He was hired by Indiana University, Indianapolis (then IUPUI) as a full professor
in 2012.
37. He was named a Chancellor’s Professor, Indiana University Indianapolis, in 2024.
38. He is also the Coordinator of the Urban Education Studies program, where he
oversees the program’s more than 70 doctoral students.
39. His research and coursework focus on many issues of diversity, equity, and
inclusion in the educational system and the surrounding society, including issues of
systemic racism and anti-LGBTQ prejudice.
40. He will teach 3 courses during the 2024/2025 academic year.
41. Professor David McDonald is an associate professor in the Department of Folklore
and Ethnomusicology at Indiana University. His second term as Chair of that department
will conclude in August of 2024.
42. He was awarded tenure in 2014 and is working for promotion to full professor in
the next year.
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43. His research and coursework focus on the ethnomusicology of violence, war, and
social movements. He has a specific focus on issues relating to Israel and Palestine.
44. He will teach 4 courses in the 2024-2025 academic year.
45. The requirements imposed by S.E.A. 202, described above, apply to Professors
Carr, Schuster, Scheurich, and McDonald as they are “faculty members” of Purdue
University and Indiana University (respectively) 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.
46. The statute requires the universities’ boards 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).
47. 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).
48. The plaintiffs do not know 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.
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49. 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.
50. Moreover, even if they could discern a meaning, the plaintiffs cannot discern in
advance how they are to determine what, and to what degree, speech activities will be
deemed to “foster a culture of free inquiry, free expression, and intellectual diversity
within the institution.” The plaintiffs cannot discern, for example, what percentage of
their time must be spent fostering “free inquiry” or “free expression” in order to be
deemed to assist in fostering such “cultures.”
51. 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
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.
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52. 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.
53. 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.
54. 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.
55. As part of a doctoral seminar on historical inequities and injustices in education
and the surrounding city/society, Dr. Scheurich leads seminar discussions on the
genocide of Native Americans and its continuing effects, the slavery of Black people and
the continuing effects, and Jim Crow laws and effects, all of which is based on extensive
research. Thus, based on extensive facts and research, he indicates that there is no
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legitimate opposite side to be represented. He presents to his students that the genocide
occurred, slavery occurred, and Jim Crow laws occurred, and he presents the far-reaching
effects that continue through the present. He does not believe that he should be required
to present “divergent” perspectives regarding the existence or scope of these events and
their effects.
56. As another example, Dr. Scheurich leads discussions on the far-reaching inequities
and injustices experienced by LGBTQI individuals, which are also based on ample
research. He leads discussions of the research on these issues and of the written accounts
of LGBTQI individuals. Thus, based on facts and research, he indicates that there is no
legitimate opposite side to be represented. He believes that teaching that these did not
occur, or that they were limited occurrences would be teaching falsehoods. However, he
believes that S.E.A. 202 would require him to teach such falsehoods or not to address
these topics at all.
57. Professor McDonald teaches about Palestinian history, culture, and activism. He
does not believe that he should be required to teach certain “divergent” scholarly
perspectives regarding the Israeli-Palestinian conflict, including, for example, the once
popular assertion that Palestinians do not exist and that their forcible dispossession in
1948 did not occur.
58. Although the plaintiffs already seek to foster a culture of free inquiry in their
classrooms, this does not mean that they believe it is appropriate to provide equal time
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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.
59. S.E.A. 202 requires the universities’ boards 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).
60. 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.
61. 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.
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62. 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.
63. 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.
64. The speech in which the plaintiffs seek to engage is in no way antithetical to the
interests of their employer.
65. The plaintiffs’ desire to refrain from certain speech is in no way antithetical to the
interests of their employer.
66. The interests of the plaintiffs in engaging in and refraining from protected speech
greatly outweighs any countervailing interest by the State.
67. At all times defendants have acted and have failed to act under color of state law.
68. Plaintiffs are being threatened with and are being caused irreparable harm for
which there is no adequate remedy at law.
Legal claims
69. 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.
70. 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
[16]
