The General Counsel’s office of the University of Idaho issued a memo on Friday advising faculty to be wary of abortion discussions in the classroom. While the letter doesn’t suggest that the topic is off-limits, it cautioned professors that pursuant to the state’s No Public Funds for Abortion Act passed in 2021, public employees that “promote” abortion may be subject to a number of possible sanctions up to and including misdemeanor or felony convictions.
State governments clamping down on political speech should generate the utmost scorn, and law professor Jonathan Turley knows exactly who to blame: the school!
However, in my view, the media’s interpretation of the letter has exceeded any reasonable construction of the law. The law does not prevent professors from discussing abortion or supporting the right in their classes.
Once again, Turley substitutes his wish-casting of “reasonable construction” for reality. Like when he counseled everyone that state abortion bans would not threaten the lives of mothers. Spoiler alert: these laws have threatened the lives of mothers. But Turley has no interest in how laws impact real people, only in his ability to play hand-waving word games to the delight of cable news hosts.
However, Turley blows off the content of the statute itself noting that if it did ban teaching about abortion…
Such a bar would be a serious denial of free speech and academic freedom principles. If that were the intention of sponsors, it should be denounced by people on both sides of this abortion debate.
Turley correctly notes that Idaho has produced gag laws in the past, admitting that the state’s legislature has a pattern of using its power to curtail speech. But he’s pretty sure they probably didn’t mean it this time!
Why does the school seem to think the bill targeted teaching about abortion? Probably because the people behind the bill said at the time that this bill targets teaching about abortion.
Idahoans don’t want their state or local governments sending their hard-earned money to abortion providers—and they certainly don’t want abortionists providing services and promoting abortion in our public schools and universities. Abortion should never be subsidized with our tax dollars, and Idaho public school students should never learn about sexuality from the abortion industry.
When they’re talking about public schools they probably mean high schools, but absent some exception, the university system would qualify as a public school. So it seems pretty clear that the folks working with the sponsors intended this to bar students from learning about abortion in schools. Yet for Turley:
At most, this is ambiguous where a court is likely to adopt the narrower meaning under the interpretative canon of noscitur a sociis. Courts will interpret terms like “promote” in light of other terms that appear in the same provision (“it is recognized by its associates”).
Of course! Obviously the university should do nothing to alert its employees that they might be exposed to criminal prosecution on the strength of the canons of construction. Much better guide to how law enforcement will deploy this law than explicit, contemporary statements about the bill’s scope. Turley has decided the people who passed the law just read it wrong and the school should let its people jeopardize themselves accordingly.
Or, more likely, Turley recognizes that blaming schools is the coin of the realm and found another avenue to flog that horse.
The Idaho law should have been drafted more clearly and expressly recognized that the law is not meant to curtail academic freedom in professors expressing support or opposition to abortion rights
While Occam’s Razor and… the record both indicate that academics aren’t carved out of this law because legislators wanted it to apply to academics, Turley knows his audience. The people he’s writing for are more interested in him blaming the literal victim of this law than lending his dwindling reservoir of credibility to striking down the abortion gag law itself, so he’s going to give a free pass to the law and blame the school’s lawyers for acting prudently.
I do not believe that the General Counsel’s Office was intentionally seeking to alarm or trigger a backlash. Such lawyers often gravitate to the most cautious interpretative approach to avoid any risk for clients or employees. However, FIRE is correct in calling for the office to rescind the letter to reinforce the rights of free speech and academic freedom. Even without rescinding the letter, the university can clarify that faculty are not gagged under the law in voicing support for this right. My concern is that this letter can create a chilling effect on professors discussing this important issue in class.
Well, the law itself creates a chilling effect on professors. Instead of asking the school to rescind this guidance — which AGAIN doesn’t actually ban anything but informs the faculty of the law — FIRE should be talking to professors about becoming plaintiffs to go after the state of Idaho. Turn on the heat instead of complaining about the chill.
This is yet another instance where Turley isn’t wrong as much as he’s a bad faith actor playing to his audience. He’s correct that the law could be read to not cover teaching about abortion and that interpretive canons should be read to protect teachers and that the law would be unconstitutional if used to do the things its authors explicitly intended it to do.
But THAT could’ve been the article. The article could read “the school sent around this scary memo correctly illustrating the state’s lawlessness.” It could have allowed “even if the state claims this isn’t what it meant, the fact that it leaves the school reasonably concerned about prosecution is proof this law must be struck down.”
But that’s not the article. The article is “school attacks academic freedom,” an angle doubtlessly designed to bolster some future defense of Amy Wax bringing a white supremacist to class or Eugene Volokh tossing around slurs by pointing to this misdirected complaint and saying, “see, I stood up for liberal academic freedom too.” Because he’s bending so far backward to make this the fault of the school instead of the state that he should consult a chiropractor.
Representative Susan Wild cautioned students at Turley’s law school that, “you must be wary of those seeking to use their influence and their expertise to wrongful ends.” This is what she’s talking about.
University of Idaho Warns Professors About Discussing Abortion [Jonathan Turley]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.