Indiana University is offering guidance on complying with Senate Enrolled Act 202.
In an email to College of Arts and Sciences faculty and staff Aug. 13, College Dean Rick Van Kooten shared an Aug. 12 message from Bloomington Faculty Council President Danielle DeSawal and Vice Provost for Faculty and Academic Affairs Carrie Docherty with “initial guidance on teaching and the complaint process” under SEA 202.
“As many colleagues have shared, the statue provides limited guidance on implementation, which creates anxiety for how the statute will be enforced but presents opportunity for the faculty to utilize shared governance to lean into what we can control while being in compliance with SEA 202,” the message read. “There is no question that the statute will change the landscape of our instructional interactions with students and provides opportunity for complaints around those interactions to be submitted for review.”
Van Kooten also wrote the College would host three virtual town halls prior to the start of the semester to answer questions on SEA 202, the university’s new expressive activity policy and other updated policies.
SEA 202, which took effect July 1, pertains to “intellectual diversity,” diversity, equity and inclusion initiatives and tenure requirements at public universities.
The bill received widespread backlash from students and faculty who condemned it as an attack on academic freedom.
IU President Pamela Whitten told Indiana Public Media in February that IU was “deeply concerned about language regarding faculty tenure that would put academic freedom at risk.”
With the fall semester beginning Aug. 26, IU is outlining how faculty should adapt to the controversial legislation.
DeSawal and Docherty’s message notes the VPFAA, BFC, University Faculty Council and academic leadership will work throughout the fall to do the “majority of the work around policies and procedures” relating to SEA 202 through faculty governance structures.
The message said the BFC will provide further guidance on how colleges should update their policies at three scheduled meetings with policy council chairs and deans. The first will take place Wednesday, and the other two will occur during the fall semester.
Two pages of guidelines are presented online.
One, a slide deck shared in DeSawal and Docherty’s message, is to “provide broad guidance for faculty” and includes information about the complaint process.
The other, a frequently asked questions page on the UFC website, is for faculty and academic affairs staff and was developed by the general counsel’s office with input from UFC co-chairs. It is for “internal guidance and decision-making purposes” and addresses 30 questions from faculty.
The two pages’ guidance focuses on classroom instruction, the complaint process and DEI.
Classroom instruction
SEA 202 requires boards of trustees implement policies prohibiting faculty members from receiving tenure or promotions if they're deemed unlikely to foster free inquiry and expression, unlikely to offer learning material from a variety of standpoints or likely to subject students to ideological positions unrelated to the academic discipline.
Tenured faculty will be reviewed every five years to ensure they continue meeting these requirements. If they don’t, they could be fired, demoted, have their salary cut or receive other disciplinary action determined by the university.
IU’s slide deck says “faculty are recognized as the experts in their discipline,” allowing them to define their course’s scope and content. It suggests they review course content before each semester.
While faculty are expected to include “a variety of scholarly works and sources from a variety of political or ideological frameworks” in the curriculum, they aren’t required to present a set number of ideas. They are also not to “force content due to concerns about scope.”
The slides specifically reference a section of SEA 202 which says it cannot be construed to limit faculty members’ academic freedom or prevent them from covering diversity, equity and inclusion or other topics.
IU's guidance says faculty should be able to defend course content selections if challenged. They are to inform students of changes to the course content made after it has started and how those changes align with how the class was originally presented.
The slide deck says deans and department chairs can support faculty against challenges to instructional decisions when they provide “clear rationale” for how they relate to past work in that subject.
The guidance also describes how faculty should broach current events and “university supported programming.”
If students discuss current events, the guidance says faculty should explain how the discussion is related to the course content and learning objectives. They should also indicate willingness to help students struggling with a current event discussion find an appropriate campus resource after class as an alternative to the discussion.
If faculty promote IU events and programming outside of the course, the guidance says they should be related to the course content. Faculty should also be prepared to defend why they promoted, or did not promote, a certain event if challenged.
Complaint process
SEA 202 mandates universities establish a process for students and employees to submit complaints about faculty they don’t believe are ensuring free expression and intellectual diversity.
According to IU’s guidelines, this process will go through EthicsPoint — a third-party confidential reporting software — and the existing misconduct and policy violation complaint reporting system.
This system has been in place since 2007, according to the slide deck, and the only new addition is the option for a complaint to be connected to SEA 202.
Other complaint categories include discrimination or harassment, financial and human resources policy violations.
Following SEA 202 taking effect, IU’s anonymous reporting page was updated with a category titled “Campus Climate.” Under this category, IU students and employees can “report failures to foster intellectual diversity in the university learning environment.”
SEA 202 doesn’t mandate universities to allow anonymous complaints about intellectual diversity. IU’s process allows them.
However, the slide deck says anonymous complaints can be difficult to investigate. Under IU’s existing process, complaints, including anonymous ones, are reviewed at the local level — a specific college or academic unit — to determine if there’s enough information for it to be investigated. If there isn’t, it's noted on the complaint and returned to the Vice Provost for Faculty and Academic Affairs. Anonymous SEA 202 complaints will follow this same process.
For now, the VPFAA alone will determine if a complaint falls under SEA 202’s criteria. In the fall, the VPFAA will work with the BFC to determine more permanent procedures for identifying complaints.
Like with other complaints against faculty, the respondent can challenge the findings at the campus level, including by engaging the Faculty Board of Review. IU-Bloomington's FBR hears and makes recommendations regarding grievances of academic appointees, like faculty, against administrative action.
SEA 202 also requires universities to send an annual report to the Indiana Commission for Higher Education detailing what the reporting procedure looks like, how the university publicized it and how many complaints were submitted. The first report is due April 1, 2025.
According to the slide deck, the VPFAA will work with the BFC Faculty Affairs Committee before that date to determine how to report the number of complaints.
Diversity, equity and inclusion
SEA 202 also prohibits universities from requiring employees or applicants to pledge support for “policy or action that would treat similarly situated people or groups of people differently based on the race, color, national origin, sex, sexual orientation, or religion” or a political or ideological movement.
Prior to SEA 202 taking effect, a page on Office of the Vice President for Diversity, Equity and Inclusion included an IU diversity pledge. Parts of the pledge included being aware of bias in language and actions, understanding one’s privileges based on race, sexuality, gender, religion and other traits, and not making assumptions about such traits in others.
The symbolic pledge, first announced in 2021, was not required. Following SEA 202 taking effect, it was removed.
If a student or employee applicant chooses to make a pledge, which the act says includes diversity, equity and inclusion statements, they may not receive benefits, admission, promotions or tenure based on the viewpoints of the statement.
Universities will be required to submit data to the Commission on Higher Education by Sept. 1 detailing their budget allotments for DEI initiatives; what are defined as DEI initiatives; the number of employees whose primary or secondary job relates to DEI each year; the number of proceedings relating to violations of DEI or harassment policies each year; and information about how the university is ensuring free speech and intellectual diversity among students and professors.
Because DEI statements cannot be required under SEA 202, the FAQ page recommends faculty and academic affairs staff not request a DEI statement from applicants to IU.
The FAQ page also says the university has policies reaffirming its commitment to nondiscrimination, affirmative action and equal opportunity.
To maintain diversity in hiring, the university will include certain preferred qualifications, such as experience working in a diverse workspace or knowledge of specific disciplines.
To protect faculty of color and “other underrepresented groups,” the FAQ page says the university maintains its bias incident reporting system and policy against discrimination and harassment.
The FAQ also notes SEA 202 states it cannot be interpreted to prohibit requiring students and employees to comply with antidiscrimination laws or taking action against those who violate them.
Faculty group responds
The University Alliance for Racial Justice released a brief criticizing SEA 202 and IU’s guidelines. Co-founder and IU professor emeritus Russ Skiba said the UARJ includes over 200 IU faculty. He said in an email the brief was sent to IU department chairs and division heads Aug. 12 and faculty Aug. 13.
The brief describes SEA 202 as “part of a larger culture war in the United States.”
“This law is designed to provoke fear and confusion and to encourage faculty and staff to censor themselves,” the brief reads.
According to Inside Higher Ed, at least 10 states have pushed for laws that would weaken or eliminate tenure at public institutions in the last two years. Furthermore, anti-DEI legislation in other states has led to numerous universities closing or defunding their DEI offices, including the Universities of Florida and Texas at Austin.
Skiba said SEA 202’s provision requiring universities to compile and share information about DEI initiatives and employees could make it easier for the state legislature to tell institutions to close them in the future, like at other state schools. Skiba said IU leaders should share what they would do if that happens.
He said while the university’s guidelines acknowledge the language in SEA 202 saying it doesn’t limit academic freedom or discussions of DEI, they don’t go far enough to protect IU faculty by saying they should prepare to defend their course choices when challenged.
“Our argument is that it’s up to the university to provide some systemic defense of tenure and academic freedom and honoring diversity,” Skiba said.
The UARJ brief also criticized IU for allowing anonymous SEA 202 complaints, which is not mandated by the law. Under IU’s Academic Appointees Responsibilities and Conduct policy, personal misconduct complaints that receive a formal investigation can’t be based “solely on anonymous information or allegations from individuals whose identities are not disclosed to the respondent.”
He also said the university should implement a method for tracking if faculty of color or other marginalized faculty are being disproportionately reported for violating SEA 202’s criteria.
Prior to Indiana Gov. Eric Holcomb signing the bill in March, a coalition of Indiana civil rights groups, including the Indiana State Conference of the NAACP, said SEA 202 would unfairly affect Black faculty and students.
“Unless we work very urgently to define some protections for faculty, and especially for faculty of color, I think we’ll see a good drop off in the willingness of high-quality faculty of color and other marginalized faculty to come to a university where they could be under such risk,” Skiba said.
In response to an Indiana Daily Student inquiry regarding the UARJ’s concerns, IU Executive Director of Media Relations Mark Bode referred to the slide deck and frequently asked questions page about complying with SEA 202.
