Labor & Employment Law Daily Wrap Up, PROCEDURE—7th Cir.: Public university professors lacked standing to challenge Indiana’s university’s new “intellectual diversity” law, (Aug 14, 2026)

By Nicholas Kaster, J.D.

The record did not show a credible threat of enforcement or an objectively reasonable chilling effect on the professors’ speech.

Four public university professors in Indiana lacked standing to challenge the state’s new “intellectual diversity” law on constitutional grounds, the Seventh Circuit has ruled, affirming the holding of the federal district court. The court determined that the professors lacked injuries-in-fact and thus lacked Article III standing. The case was therefore dismissed for lack of subject matter jurisdiction (McDonald v. Trustees of Indiana University, No. 25-2366 (7th Cir., Aug. 13, 2026)).

Education code provision. Senate Enrolled Act 202 added a provision to Indiana’s education code entitled “The Protection of Free Inquiry, Free Expression, and Intellectual Diversity.” The Act requires the boards of trustees of Indiana’s seven state-run universities, among them Indiana and Purdue Universities, to adopt and enforce certain policies. Two parts of the Act were at issue in this case.

Promotion provision. One such part, the “promotion provision,” requires universities to establish a policy “that a faculty member may not be granted tenure or a promotion” if the university determines the faculty member is: (1) unlikely to foster a culture of free inquiry, free expression, and intellectual diversity within the institution; (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; or (3) likely, while performing teaching duties within the scope of the faculty member’s employment, to subject students to political or ideological views and opinions that are unrelated to the faculty member’s academic discipline or assigned course of instruction.

Review provision. The other part at issue, the “review provision,” requires a university to review tenured faculty every five years to determine whether they have met certain criteria. These criteria include “whether the faculty member” has: (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 university’s curricula; and (3) while performing teaching duties within the scope of the faculty member’s employment, refrained from subjecting students to views and opinions concerning matters not related to the faculty member’s academic discipline or as signed course of instruction.

Lawsuit. Four public university professors in Indiana, two from Indiana University and two from Purdue, preemptively challenged the Act and certain policies that state-run universities enacted pursuant to the new law, alleging that they facially violate the First and Fourteenth Amendments to the U.S. Constitution. The State and universities moved to dismiss for lack of standing.

According to the State, the professors lacked standing because they had not alleged a concrete injury. That is, they did not allege either that their speech had reasonably been chilled in response to, or that they otherwise faced a well-founded fear of, future prosecution under the Act. Similarly, the universities argued the professors’ challenge to the policies failed because the policies were “interim and subject to revision amid ongoing implementation efforts.”

A federal district court dismissed the suit for lack of subject matter jurisdiction and denied the professors’ request for a preliminary injunction. The current appeal ensued.

Article III standing. Here, the professors alleged that the Act and policies were facially unconstitutional and have harmed them, but they sued before the Act or policies were enforced against them. This does not necessarily mean they lacked an injury-in-fact. A plaintiff does not have to await the consummation of a threatened injury to obtain preventive relief. Rather, a plaintiff may show injury in this context in one of two ways.

First, he may show he is presently injured because his speech has been chilled, meaning he has self-censored his speech in response to “an actual and well-founded fear that” a law or policy will be enforced against him. Second, he may show he faces an imminent future injury if he intends to engage in speech arguably protected by the First Amendment “but proscribed by” the challenged statute and faces “a credible threat of prosecution thereunder.”

Professors’ purported injuries. On this record, the professors did not show a credible threat of enforcement or an objectively reasonable chilling effect on their speech, the Seventh Circuit concluded.

According to the professors, the Act and policies have curbed their protected academic speech, forcing them to alter the readings they assign and discuss, restrict the content they present in class, and restructure their courses. But nothing on the books commands the professors to do anything concrete, including adopting these changes, the appellate court noted. The Act mandates that the universities adopt and enforce certain general policies. It leaves the details to the universities and, ultimately, judging whether faculty have complied.

Thus far, the adopted policies merely reflect the Act’s general requirements, said the Seventh Circuit. They do not reveal whether or to what extent the professors’ uncensored speech would violate the act or policies.

Mere existence not enough. The professors have not alleged or shown that their uncensored speech would violate the challenged Act or policies, said the appeals court. The “mere existence” of the Act and policies is not enough. An alleged injury must be “fairly traceable” to the challenged Act or policy to be an injury-in-fact. To be sure, the professors asserted a fear that their uncensored speech might incur punishment under their reading of the Act and policies. But this fear by itself “is insufficient to create standing” under Article III, the Seventh Circuit said.

No credible enforcement threat. Nor could the appellate court find a credible threat based on enforcement evidence. “We do not know how the universities have enforced or plan to enforce the act and policies, let alone whether the universities will enforce them as the professors anticipate,” the court said, noting that the universities had not enforced the Act or policies against any faculty when this suit was filed in July 2025. Of course, this standing inquiry could change if these universities enforce the policies, the appellate court advised.

“Perhaps the professors disagree with Indiana’s decision to adopt the act, find the act’s mandates improper, or conclude the act is inherently dangerous because it is subject to misuse, prompting them to self-censor,” said the appeals court. But such “subjective chill” allegations are no injury. Permitting such a suit, said the appellate court, “would have the federal courts as virtually continuing monitors of the wisdom and soundness of” state level policy, which “is not the role of the judiciary, absent actual present or immediately threatened injury resulting from unlawful government action.”

This is not to say the professors will never face a credible threat of enforcement or reasonably chill their speech in response to a well-founded fear, the appeals court said. The facts on the ground could change from those in the record now, leading to a new challenge. But with no credible threat or reasonable chilling discernable here, the professors have no injury, the Seventh Circuit opined. With no injury, they have no standing and with no standing they presented no case or controversy permitting federal court intervention.

Accordingly, the Seventh Circuit affirmed the district court’s judgment dismissing for the suit for lack of subject matter jurisdiction.

The case is No. 25-2366.

Judge: Kolar, J.

Attorneys: Stevie J. Pactor (American Civil Liberties Union of Indiana) for David McDonald, James Scheurich, Steven Alan Carr and David G. Schuster. John Robert Maley (Barnes & Thornburg) for Trustees of Indiana University and Trustees of Purdue University.

Companies: American Civil Liberties Union of Indiana; Trustees of Indiana University; Trustees of Purdue University

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