Three University of Alabama professors and three University of Alabama at Birmingham students filed a federal lawsuit against Gov. Kay Ivey and the University Board of Trustees for their implementation of SB129, a recent state anti-DEI law.
The plaintiffs, represented by the American Civil Liberties Union, argue that the law — which bans diversity, equity and inclusion offices and programs in public schools and restricts classroom instruction about “divisive concepts” — violates the First and 14th Amendments.
Gina Maiola, communications director for the Office of the Governor, said that, “The governor stands behind this legislation and its intent.”
Plaintiffs include the Alabama State Conference of the NAACP; Richard Fording and Dana Patton, professors of political science; Cassandra Simon, associate professor of social work; and three UAB students.
The lawsuit argues that the law is unconstitutionally vague and has been arbitrarily enforced, sparking fear in instructors who worry about being fired for teaching classes they have taught for years.
It also claims that Fording, Patton and Simon have each either received threats of disciplinary action from University officials or fear they could for “alleged noncompliance with SB 129 if they do not alter their curriculum to avoid certain viewpoints.”
“My fear always was that this legislation would open the door for people who don’t like the material that we’re teaching that is related to divisive concepts,” Fording said. “It would open the door for them to basically try to use the law to prevent us from teaching that material, even though we teach it accurately and responsibly.”
Fording teaches a political science course titled “Social Movements and U.S. Politics.” He also designed a course titled “The Politics of Poverty,” which he said he declined to teach until the situation is rectified. Currently, Patton is teaching the Politics of Poverty course.
In Fording’s social movements class, he teaches about several social movements through U.S. history, including the Civil Rights and LGBTQ movements.
“That’s the kind of material, even though it’s all factual and true, and I teach it, I think, in an objective way,” Fording said. “This legislation basically opens the door for people to use as an excuse to target any course that they view threatens their ideology.”
Patton said she used to incorporate Harvard’s Implicit Association Test because “if we better understand the implicit associations we have, whether that’s with race or gender or religion or a variety of other topics, then we’re more aware of our explicit behaviors.”
However, Patton said she no longer feels comfortable doing that in her classes out of fear her message could be misinterpreted and accused of violating the law.
According to the lawsuit, students have complained to the University about Patton’s classes, which involve discussions about concepts such as white privilege, racism, bigotry and wealth redistribution, since the law took effect.
“It was made very clear to me that my status as a tenured full professor does not protect me in this case,” Patton said. “If I’m found to violate SB129, disciplinary action can be taken, and following the faculty handbook, that can ultimately result in termination of my job. I take this extremely seriously for that reason.”
Turning Point USA, a conservative political group, published an online “Professor Watchlist” that seeks to “expose and document college professors who discriminate against conservative students and advance leftist propaganda in the classroom,” according to the organization’s website. Multiple UA professors have been added to this watchlist, including Simon.
“We should not be allowing people off-campus to complain about what we’re teaching,” Fording said. “Or at least, we should not take those complaints serious, seriously enough that we come to faculty and ask them to defend themselves.”
Since October, Patton has recorded all of her lectures out of concern that what she says might be misunderstood. This way, she will have audio evidence of what she did and did not say, should a complaint be filed against her.
Other faculty members have shared that they also do not feel comfortable teaching their respective classes.
“I’ve definitely heard from many faculty that are intimidated by this and faculty who teach anything that might be considered or interpreted by right wing extremists pushing this law and using this law to suppress what we teach, ” Fording said. “They’re intimidated and fearful of what might happen. We’ve been told by our college, the College of Arts and Sciences, that we shouldn’t teach this material, actually, just to be safe.”
The University released new DEI guidance for faculty in July. The guidelines give some definitions of what a “divisive concept is” as well as what to do as a faculty member if there is a complaint made against them. However, Patton and Fording both believe the guidelines are still too vague.
“We need better specific procedures for how to handle these complaints, and they need to be written in a way that protects faculty from really irrelevant, politically, ideologically motivated complaints,” Fording said.
Despite the lawsuit being against the University BOT, Fording said it is a tough situation even for the University’s administration.
“Even though I’ve been critical of how our university’s administration has been handling this from the president’s office down through our college… I understand that they’re in a position too where they’re vulnerable, they’re in administrative positions that can easily be terminated tomorrow,” Fording said.
The 85-page lawsuit requests that the court declare SB129 unconstitutional, issue preliminary and permanent injunctive relief preventing the Board of Trustees from enforcing SB129, and award plaintiffs’ cost of suit and reasonable attorney fees.
“There’s a lot of sense of discouragement, and I think hopefully this is a shot in the arm for a lot of people to realize that their voice is being communicated through this lawsuit,” Fording said. “I look forward to hopefully having a very positive resolution to this.”
