BY JOHN K. WILSON
The home page of Indiana University’s Kinsey Institute website, https://kinseyinstitute.org/.
Last Friday, the administration of Indiana University decided to delay seeking trustee approval of a plan announced just two weeks earlier to move its Kinsey Institute to a separate nonprofit organization. The plan, made in response to legislators requiring a ban on all state funds to the Kinsey Institute because of conspiracy theories about sex research, has aroused massive opposition.
A letter from Kinsey Institute faculty identifies many reasons to oppose this separate entity, including concerns about the division of it from the Kinsey collection still held by the university and questions about why it is needed at all.
But I want to emphasize one important factor that hasn’t been addressed: academic freedom.
Because the Kinsey Institute faculty and staff will remain IU employees, it might seem that their academic freedom will remain protected. However, that’s far from clear because a new nonprofit would not need to obey the First Amendment and might not have to follow any of IU’s policies and procedures protecting academic freedom.
Technically speaking, academic freedom is not a right held by individual faculty but a limit placed on the power of government by the First Amendment and on private and public universities by policies and contractual obligations that protect it. This is usually a distinction without a difference because universities employ their employees, so a right of the employee is the same as a limit on the employer.
But this bizarre proposal to place the Kinsey Institute’s administrative functions in a separate 501(c)3 raises many uncertainties about who will control the operations of the Kinsey Institute. While the administration depicts the proposal as purely a “bookkeeping” matter, in fact administrative decisions have enormous power to impact academic freedom, including restricting research, limiting access to facilities, and even potentially the power to remove faculty and other employees from the Kinsey Institute. Any campus policies protecting the rights of employees would not apply to the decisions of a private institution. This new 501(c)3 could not order IU to fire employees, but it might be able to withhold the Kinsey Institute funds for researchers, which would have the same result.
The privatization of the Kinsey Institute is a crazy idea in response to a crazy attack by state legislators. Relying on unproven conspiracy theories about Kinsey, who died in 1956, Republican state legislators seemed to imagine that Kinsey’s sex surveys of underage people broke the law (they didn’t) and that the ghost of Kinsey still haunts the place. State Rep. Lorissa Sweet argued for the ban: “By limiting the funding to Kinsey Institute through Indiana University’s tax dollars, we can be assured that we are not funding ongoing research committed by crimes.” Of course this false allegation of “crimes” at the Kinsey Institute is an insane smear that no one actually believed. But Republicans were unwilling to stand up to the lunatics within their own party, and they voted for the ban on funding the Kinsey Institute.
What should a public university do when loony politicians make insane demands that violate the First Amendment? If you picked, “Bow down in complete subservience,” then you understand today’s college administration.
The administration claimed: “While the Kinsey Institute does not receive direct appropriations, the new legislation requires that the university also ensure that no state funds are indirectly used to support the Kinsey Institute. A limited number of the Institute’s operational functions have historically been supported by the university’s general fund, which may have indirectly included state dollars.” But that shouldn’t matter at all, because Indiana University charges a 58.5% facilities and administrative cost rate on its grants, so the Kinsey Institute already pays its share of indirect costs. The state ban is on providing subsidies to the Kinsey Institute, not on any use of university funds. As one news report noted in April, “this does boil down to a bookkeeping update for the university.” If the university determined that it is subsidizing the Kinsey Institute, then the only solution needed would be to require an additional payment, not to create a separate organization. And this temporary solution should only exist until IU can arrange for a legal challenge to the clearly unconstitutional effort by the state legislature to engage in viewpoint discrimination by defunding an entity solely because of misinformation about its views. As Jeremy C. Young, PEN America’s Freedom to Learn program director, said: “It is horrifying that the Indiana legislature would ignore university experts and defund a research institute on the basis of debunked conspiracy theories.”
In May, Nico Perrino of FIRE noted the “chilling effect” of this “moral panic” and accurately predicted that “the university will undoubtedly be cautious in how full-throated a defense it mounts.” But now the administration has gone from cautious to submissive. The reason is pure cowardice: they are fearful that any controversy involving the Kinsey Institute could be used to defund the university. The fiction of a nonprofit is designed to separate IU from the Kinsey Institute in a public way, so that they can avoid further retaliation from the legislature. This is aimed at protecting IU, not protecting academic freedom or the Kinsey Institute.
One of the worst parts of the administration proposal is the precedent it would set. Public universities are vast economic machines with a tiny subsidy from state governments. When legislators ban state funding, it should mean very little because the university can draw funding from many sources. But if a university agrees that all its sources of funds are state funds, it gives legislators the power to control everything on campus, to order bans on individual programs, student groups, or even controversial professors. Public universities need to resist oppressive state control, not submit to it. Cowardice in response to repression only fuels more censorship.
John K. Wilson was a 2019-20 fellow with the University of California National Center for Free Speech and Civic Engagement and is the author of eight books, including Patriotic Correctness: Academic Freedom and Its Enemies and the forthcoming book, The Attack on Academia.
