A federal judge heard arguments Wednesday in a lawsuit alleging that anti-diversity, equity and inclusion (DEI) law signed by Gov. Kay Ivey last year violates the constitutional rights of professors and students.
The lawsuit, brought by professors and students in the University of Alabama System against Gov. Kay Ivey and the University of Alabama Board of Trustees, alleges that SB 129 stifled instructional activity and violated the First and Fourteenth amendment rights of the plaintiffs.
A two-day evidentiary hearing was held last week.
SB 129 bans public funding of DEI and the teaching of so-called “divisive concepts,” such as people of one race are “inherently responsible” for past crimes committed by members of that race. Critics say the legislation was vaguely written and threatened the teaching of Black history in schools.
Antonio Ingram, counsel for the plaintiffs, began oral arguments Wednesday by arguing that SB 129 prevents debates from happening in the classroom and prevents students from learning, citing as an example a course that could bring up the idea of paying reparations to Black Americans for centuries of slavery, segregation and voting disenfranchisement.
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“Let’s say you’re in that reparations course, can a professor now not divide the class into two and have people take different positions?” Ingram asked.
Ingram specifically mentioned a project Cassandra Simon, a social work professor at the University of Alabama, had students complete for a grade involving a sit-in objecting to SB 129 which was cancelled while other protests on the campus were permitted by the college.
U.S. District Judge R. David Proctor, who is presiding over the case, said there could have been an “opt out provision” in place because it wasn’t clear if all of the students in the class agreed on the topic or not.
“Didn’t the administration give Dr. Simon feedback on how you can avoid that?” Proctor asked Ingram. “You can have opt out options, you can have students do a different protest.”
Jay Ezelle, an attorney representing the UA Board of Trustees, said some students could have been pressured to do the sit-in protest that was canceled.
“Where I would disagree and do disagree with Dr. Simon, is I don’t think that appreciates the pressure of the majority of students in class and the minority of students in class,” he said.
The professors in the University of Alabama system have a “credible fear of enforcement” of the law because of student complaints and investigations that have been conducted by the universities on their professors, Ingram said.
He cited testimony from Dana Patton, a political science professor and director of the Witt Fellows Program at UA, who said she was investigated over the books she assigned for her courses and due to not wanting to be investigated again, she is now afraid to teach certain topics.
Proctor pushed back, saying there was no adverse action taken against Patton and that there is always going to be a potential for student complaints.
Dan Cantor, another counsel member for the plaintiffs, argued on behalf of the students who had been affected by SB 129.
Cantor clarified statements made during Sydney Testman’s, a former financial coordination for the UAB Social Justice Advisory Council (SJAC), testimony last week stating that not only did the SJAC lose $10,000 and their University Funded Organization Status, but Testman also lost her $600 stipend due to her role as a financial coordinator being dissolved due to SB 129.
Cantor also said in court that while SJAC could have still applied to be a Registered Student Organization (RSO), it would have only been $100 the organization could receive and this funding was not secure.
The attorney also cited testimony from UAB employee Mary Wallace, who said some RSOs cannot get funding because of the University of Alabama Birmingham’s guidance following the passing of SB 129 which states that the institution cannot provide funding for “DEI related organizations.”
Cantor also provided clarification on testimony from UAB student Miguel Luna, who testified last week that his organization, Esperanza, lost funding due to SB 129. The attorney said Wednesday Esperanza also lost funding when SJAC did due to Esperanza using funding from SJAC to host events.
Counsel for Ivey did agree with the plaintiffs that Testman suffered due to the removal of her stipend, but argued Luna’s claim wasn’t reasonable because it’s more difficult to determine.
Cantor said the UA chapter of the NAACP has also been negatively impacted by SB 129 due to the closure of the Black Student Union and Safe Zone spaces which were used by multiple members of the organization. He argued these two spaces were closed due to UA assuming they would violate the bill because of the vague wording.
“UA doesn’t have to provide space, but once they do, they can’t discriminate based on viewpoint,” Cantor said.
The UA chapter of the NAACP is worried it might be completely shut down due to SB 129 according to Cantor. He said the organization is at risk of not receiving funding and they aren’t able to recruit members and leaders because of the BSU space being closed.
In their presentation, lawyers for Gov. Ivey argued that the professors are not advocating to teach divisive concepts, but instead are worried about student complaints and not actual enforcement.
Defense for Ivey also said the language in the bill isn’t vague and certain topics like political and social science need limits.
“You can always talk yourself into thinking a statute is vague,” counsel said.
Proctor is still indicating that he wants to decide whether an injunction should be issued before classes start in August. He also told both sides to discuss institutional neutrality and implementations to be on the same page. Cross briefings are set to start in three weeks.
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