University of Idaho warning: Employees who discuss abortion may face prosecution under state law

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The University of Idaho warned employees Friday that they must remain neutral when discussing abortion in the classroom or risk prosecution under a state law — including a conviction or loss of employment.

The guidance from the public institution’s lawyers, sent to employees Friday, angered some supporters of faculty and civil liberties while reigniting debate over whether the university has adequately defended academic freedom.

It also follows the national trend of state policymakers, nearly all conservatives, stepping in on higher education issues that have historically been left to institutions — such as tenure and curriculum selection.

Last year, the Idaho Legislature passed what is called the No Public Funds for Abortion Actsweeping legislation that banned government money from being funneled to most abortion providers.

the measure, opposed by the state department of the American Civil Liberties Union, also prohibited public employees from promoting abortion. It blocked public institutions from using tuition and fee dollars to pay for abortions or counseling in favor of it. And it prohibited school-based health clinics from performing abortions, referring a student for abortion or providing drugs classified as emergency contraception, except in cases of rape.

An unsigned email from the University of Idaho’s Office of the General Counsel told employees Friday that in a “changing legal landscape, it remains unclear how these laws will be enforced.”

However, it said that classroom debates on abortion and similar topics “should be treated with caution” and limited to relevant classroom teaching.

Staff and faculty must present abortion neutrally, the general counsel said.

“Academic freedom is not a defense to violations of the law, and faculty or others responsible for classroom topics and discussions must themselves remain neutral on the subject matter and may not conduct or participate in discussions contrary to these prohibitions without risk of prosecution,” it said.

The Chief Counsel noted that violations of the law can be misdemeanors or felonies. Those convicted may risk losing their jobs and a ban on future government employment.

Staff under certain circumstances can still discuss abortion in a viewpoint-neutral way, and they can refer students to outside resources on the topic, the general counsel said. It also said the law allows the university to distribute condoms “for the purpose of helping to prevent the spread of sexually transmitted diseases and not for the purpose of preventing contraception.”

The general counsel’s interpretation of the law irritated some faculty members.

Russell Meeuf, a professor of media studies and former president of the university’s Faculty Senate, said he and his colleagues felt uncomfortable that the general counsel did not protect academic freedom.

He was part of a group that helped write an academic freedom policy for the Idaho State Board of Education, which it approved earlier this year. The general counsel’s guidance is “not in line” with that policy, he said.

Meeuf said the language in the state law is unclear. Nothing in it expressly regulates classroom conversations, and the general counsel has upset faculty by saying it does, he said.

The board’s policy includes much more specific references to what would constitute crossing a line in the classroom, such as instructors forcing their beliefs on students, he said.

The university said in an email that the guidance was intended to help its employees understand the legal meaning of the state law, which it said was “challenging” and has “real implications.”

It said the law prohibits public funds from being used to “promote” abortion. Although the charter does not spell out what that means, “it is clear that university employees are paid with public funds,” the university said.

“Employees who engage in their work in a way that favors abortion may be considered to be promoting abortion,” the statement said. “While abortion can be discussed as a policy issue in the classroom, we strongly recommend that employees responsible for the classroom remain neutral or risk violating this law. We support our students and employees, as well as academic freedom, but understand the need to work within the laws enacted by our state.”

The university’s actions have attracted criticism from outside. A civil liberties watchdog, the Foundation for Individual Rights and Expression, is preparing to send a letter to the institution about the guidelines, one of its attorneys, Adam Steinbaugh, said Monday.

Steinbaugh said the university’s interpretation of the law is confusing. The statute mentions a ban on promoting abortion, “which is viewpoint discriminatory,” he said.

But the university, which enrolls more than 10,700 studentsappears to be to maintain a blanket ban that stops staff from discussing abortion on both sides of the issue, Steinbaugh said.

“The university’s application of this law to tuition runs directly into the First Amendment,” he said.

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