The Seventh Circuit’s Indiana faculty speech ruling in McDonald v. Trustees of Indiana University (No. 25-2366) dismissed a constitutional challenge to the state’s academic-content law on standing grounds, leaving unresolved whether public universities may lawfully condition tenure and promotion on whether professors foster intellectual diversity in the classroom.
The panel held that the two named plaintiffs, Professors McDonald and Scheurich, had not demonstrated a sufficient injury to bring their First Amendment claims. Because the university’s tenure, promotion, and annual-review policies did no more than incorporate by reference the requirements of the statute, without specifying any concrete consequence the professors faced, the court found no standing to proceed to the merits.
The Statute Under Challenge
The law at issue, Senate Bill 202 (also designated SEA 202), was signed by then-Governor Eric Holcomb and took effect 1 July 2024. It conditions tenure and promotion at Indiana’s public colleges and universities on whether a faculty member is likely to foster a culture of free inquiry, free expression, and intellectual diversity, and whether they expose students to scholarly works from a variety of political or ideological frameworks.
The law also requires institutions to maintain reporting systems through which students and employees may lodge complaints against faculty members. Consequences can include revocation of tenure or termination. In April 2025, PEN America reported that Indiana University had opened a compliance investigation against a tenured professor under SB 202, describing it as an ‘egregious threat to academic freedom.’
SB 202 also codified tenure in Indiana state law for the first time and specifies that faculty cannot receive negative evaluations for criticising university leadership or engaging in political activity outside the classroom. Indiana’s legislature went further in 2025, adding higher-education requirements to its budget bill (House Enrolled Act 1001): faculty productivity reviews, mandatory online publication of course syllabi, elimination of low-enrolment degrees, a declaration that faculty governance is ‘advisory’ only, and a grant of power to the governor to appoint all nine members of the Indiana University board of trustees.
The Indiana Faculty Speech Ruling and a Circuit Split
Although the panel majority declined to address the constitutional question, Judge Frank Easterbrook used a concurrence to set out his view of the underlying First Amendment issue. His reasoning turns on the government-speech doctrine: a state university, as an arm of the state, may determine what is taught and may hire faculty to deliver that curriculum. On that analysis, professorial speech in the classroom is not regulated speech; it is purchased speech.
In his words: ‘Professors’ speech in class has not been regulated; it has been hired.’ He drew on the four essential freedoms of a university, which he located in the institution rather than in individual academics: the freedom to determine who may teach, what may be taught, how it shall be taught, and who may be admitted to study.
Easterbrook directly addressed the concern that institutions promising students a certain kind of education would be powerless to deliver it if professors retained unfettered discretion over classroom content. ‘Faculty may choose to provide tendentious screeds instead,’ he wrote, ‘denying their institutions the ability to provide students with a particular kind of educational experience.’
The concurrence placed itself in explicit conflict with the Eleventh Circuit. On 7 July 2026, a divided Eleventh Circuit panel in Pernell v. Florida State University System affirmed a preliminary injunction barring Florida from enforcing the classroom-instruction provisions of its Individual Freedom Act, commonly known as the Stop WOKE Act, against university professors. That court held the law’s viewpoint-based restrictions on postsecondary teaching likely constituted unconstitutional viewpoint discrimination. Easterbrook noted his agreement with the dissent in Pernell, which took the contrary view.
The two circuits have now arrived at incompatible frameworks. The Eleventh Circuit treats classroom instruction by a public university professor as constitutionally protected individual speech susceptible to viewpoint-discrimination analysis. Easterbrook’s concurrence treats the same speech as an exercise of the university’s own expressive prerogative, placing it outside the First Amendment’s protections for individual speakers altogether.
Because the Seventh Circuit decided McDonald on standing, and because Easterbrook’s analysis is concurring rather than majority opinion, the circuit split is live but not formally entrenched. The underlying district court proceedings, docketed at No. 1:24-cv-01575 in the Southern District of Indiana, remain the most immediate venue in which the merits might eventually reach a panel majority. Whether another plaintiff with clearer standing can force a definitive ruling from the Seventh Circuit, or whether the Supreme Court of the United Kingdom takes up the question, is now the central procedural question in this area of law.
