Cases & Developments

Memorandum Opinion Denying Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs, several professors at the University of Alabama, students from the University of Alabama at Birmingham, and the Alabama State Conference of the National Association for the Advancement of Colored People, Inc. filed a motion to enjoin defendants, the Board of Trustees of the University of Alabama and the Governor of Alabama from enforcing Alabama Senate Bill 129 (hereinafter referred to as SB 129). Plaintiffs alleged that SB 129 is unconstitutional under the First Amendment, the Due Process Clause of the Fourteenth Amendment, and the Equal Protection Clause of the Fourteenth Amendment. SB 129 “prohibits public schools from finding or sponsoring ‘any diversity, equity, and inclusion programs . . . [and] prohibits teachers from requiring students in public schools, including colleges and universities, to assent to eight “divisive concepts.”’ In denying plaintiffs’ motion, the court found that plaintiffs’ free speech claims failed and reasoned that “our Circuit’s precedent [strongly suggests] that the Professors’ in-classroom instruction constitutes government speech” and that “that balancing weighs in favor of the interests of [defendant] the Board. The Board clearly has an interest in regulating the type of classroom indoctrination forbidden by SB 129.” While plaintiffs alleged that SB 129 chilled their speech as they made changes to their course curriculum, the court noted that plaintiffs’ changes in course materials were made “due to [] fear, rather than any discipline, direction from a University administrator, or requirement of the Board.” While plaintiffs alleged SB 129 is vague and challenged the bill based on a lack of explicit standards and minimum guidelines, the court was not convinced, reasoning that SB 129 “includes objective terms about what is prohibited (such as requiring student assent to a divisive concept), and noting that there is a scienter requirement (which is frequently upheld in civil and criminal laws) and a safe harbor that permits teaching about these concepts in an objective manner and in a historically accurate context.”