David McDonald v. Trustees of Indiana University

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 25-2366
D
AVID MCDONALD, et al.,
Plaintiffs-Appellants,
v.
T
RUSTEES OF INDIANA UNIVERSITY, in their official capacities,
and TRUSTEES OF PURDUE UNIVERSITY, in their official capaci-
ties,
Defendants-Appellees,
and
S
TATE OF INDIANA,
Intervenor-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:24-cv-01575 — Richard L. Young, Judge.
____________________
A
RGUED FEBRUARY 19, 2026 — DECIDED AUGUST 13, 2026
____________________
Before EASTERBROOK, PRYOR, and KOLAR, Circuit Judges.
KOLAR, Circuit Judge. Four public-university professors in
Indiana preemptively challenge the state’s new “intellectual

2 No. 25-2366
diversity” law, and certain policies that state-run universities
enacted pursuant to the law, alleging that they facially violate
the First and Fourteenth Amendments to the U.S. Constitu-
tion. As always, our first order of business is to ensure our
jurisdiction. And Article III standing is necessary for our ju-
risdiction. To have standing the professors must show either
a credible threat that the State or universities will enforce the
law or policies against them, or an objectively reasonable
chilling effect on their speech. Speech First, Inc. v. Killeen, 968
F.3d 628, 639 (7th Cir. 2020) (citation omitted). They must
make either showing based upon the law’s or policies’ “oper-
ation”—i.e., text—or “enforcement.” Babbitt v. United Farm
Workers National Union, 442 U.S. 289, 298 (1979).
Below and on appeal, defendants have argued that be-
cause the law does not apply to the professors directly, and
because the universities’ policies were “interim” in nature
when the professors sued, the professors lack standing. We
reject those arguments. That the act applies to the professors
only indirectly through the universities’ actions does not au-
tomatically deprive them of standing. Likewise, policies (in-
terim or permanent) can give rise to standing—labeling a pol-
icy as “interim” does not insulate it from a constitutional chal-
lenge.
Nonetheless, we conclude at this early juncture and on this
record that the professors have not shown that they have
standing. We thus affirm the district court’s judgment dis-
missing the complaint.

No. 25-2366 3
I. Background
We take as true all the professors’ well-pled allegations
and draw all reasonable inferences in their favor. Bria Health
Services, LLC v. Eagleson, 950 F.3d 378, 381 (7th Cir. 2020).
A. Senate Enrolled Act 202
Senate Enrolled Act 202 added a provision to Indiana’s ed-
ucation code titled “The Protection of Free Inquiry, Free Ex-
pression, and Intellectual Diversity.” Ind. Code art. 21-39.5
(2026); Ind. Pub. L. No. 113-2024, § 11, 2024 Ind. Acts 1742,
1746 (adding article 39.5 to title 21 of the Indiana Code
“effec-
tive July 1, 2024”). The act, the State says, was meant “to clar-
if y that a core mission of public universities is to promote ‘free
inquiry, free expression, and intellectual diversity.’” The act
requires the boards of trustees of Indiana’s seven state-run
universities, among them defendants Indiana and Purdue
Universities, to adopt and enforce certain policies. I.C. §§ 21-
39.5-1-1, -2.
Two parts of the act are at issue here. The first is subsection
21-39.5-2-1(b), which we call the “promotion provision.” It re-
quires universities to establish a policy “that a faculty mem-
ber may not be granted tenure or a promotion” if the univer-
sity 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

4 No. 25-2366
applicable to the faculty member’s academic
discipline; or
(3) likely, while performing teaching duties
within the scope of the faculty member’s em-
ployment, to subject students to political or ide-
ological views and opinions that are unrelated
to the faculty member’s academic discipline or
assigned course of instruction.
Id. § 21-39.5-2-1(b).
The second relevant provision is subsection 21-39.5-2-2(a),
which we call the “review provision.” It 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 diver-
sity within the institution.
(2) Introduced students to scholarly works from
a variety of political or ideological frameworks
that may exist within the [university’s] curric-
ula[.]
(3) While performing teaching duties within the
scope of the faculty member’s employment, re-
frained from subjecting students to views and
opinions concerning matters not related to the
faculty member’s academic discipline or as-
signed course of instruction.
Id. § 21-39.5-2-2(a) (subsections omitted).

No. 25-2366 5
The act defines some but not all of the key terms in these
provisions. “Faculty member” means “an employee of an in-
stitution whose employment duties include teaching students
of the institution.” Id. § 21-39.5-1-3. And “[i]ntellectual diver-
sity” means “multiple, divergent, and varied scholarly per-
spectives on an extensive range of public policy issues.” Id.
§ 21-39.5-1-5. But the act does not define “free inquiry” or
“free expression.”
The act also mandates that state-run universities give the
required policies teeth. To enforce the review provision, any
such university must “adopt a policy that establishes discipli-
nary actions” it will take if it “determines ... that a tenured
faculty member has failed” to meet one or more of the provi-
sion’s requirements. Id. § 21-39.5-2-2(e). Such disciplinary ac-
tions must include: “(1) termination; (2) demotion; (3) salary
reduction; (4) other disciplinary action as determined by the
institution; or (5) any combination of” these actions. Id. A uni-
versity must also create a procedure for students and staff to
lodge a complaint when any faculty member (irrespective of
tenure) “is not meeting the criteria described in” the review
provision. Id. § 21-39.5-2-4(a)(1), (2). And it must refer these
complaints to “appropriate human
resource professionals
and supervisors for consideration in employee reviews and
tenure and promotion decisions.” Id. § 21-39.5-2-4(a)(3).
The act cabins the promotion and review provisions in a
few ways. It says a university “may not consider the follow-
ing actions by a faculty member” when enforcing either pro-
vision:
(1) Expressing dissent or engaging in research
or public commentary on subjects.

6 No. 25-2366
(2) Criticizing the institution’s leadership.
(3) Engaging in any political activity conducted
outside the faculty member’s teaching or men-
toring duties at the institution.
Id. § 21-39.5-2-1(c); see id. § 21-39.5-2-2(d). And the act says it
“may [not] be construed” to “[l]imit or restrict the academic
freedom of faculty members or prevent faculty members from
teaching, researching, or writing publications about diversity,
equity, and inclusion or other topics.” Id. § 21-39.5-6-1(3).
B. The Professors’ Initial Suit
Having drawn the act’s contours, we turn to the profes-
sors’ challenge to it.
Before the act took effect, Indiana University professors
David McDonald and James Scheurich, and Purdue Univer-
sity professors Steven Carr and David Schuster, challenged it
in federal district court. Carr v. Trustees of Purdue University,
No. 1:24-cv-00772, 2024 WL 3819424, at *3 (S.D. Ind. Aug. 14,
2024) (Carr I). They brought a facial challenge, alleging the
promotion and review provisions infringe on their protected
speech and are unconstitutionally vague. Id. A week later,
they sought an injunction barring the universities from en-
forcing the act. Id. at *4. The professors argued they were each
uniquely injured “by the chilling effect of the requirements
imposed by [the act] on their protected First Amendment ac-
tivities.” Id. at *5. They asserted that “they have already felt
compelled to make changes to their syllabi in the form of their
preemptive efforts to abide by [the act’s] dictates,” which re-
mained unclear to them given the act’s broad language. Id.
The State of Indiana intervened to defend the act. Id. at *4.
And, joined by the universities, it moved to dismiss, arguing

No. 25-2366 7
the professors lacked Article III standing because they lacked
injuries and ripe claims. Id.
The district court sided with the State and universities. It
held no credible threat existed because the act purports to reg-
ulate university boards of trustees, not individual faculty
members. Id. at *6. If the act does not regulate the professors
directly, the court reasoned, they face no credible threat of en-
forcement and need not self-censor. Id. Thus, the court dis-
missed the complaint for lack of subject-matter jurisdiction.
Id. at *7.
C. The Professors’ Present Suit
Four weeks later, the professors sued again, this time in
parallel actions against the individual universities, challeng-
ing the act and newly minted policies the universities had
adopted after the professors sued the first time. Carr v. Trus-
tees of Purdue University, No. 1:24-cv-01575, 2025 WL 2106496,
at *1 (S.D. Ind. July 23, 2025) (Carr II). And shortly thereafter,
the professors sought to enjoin the promotion and review pro-
visions of the act as violating the First and Fourteenth
Amendments.
More specifically, Professors McDonald and Scheurich
challenged Indiana University’s policies on “Faculty and Li-
brarian Tenure,” “Faculty and Librarian Promotions,” and
“Faculty and Librarian Annual Reviews.” Each policy merely
incorporated by reference “the requirements of” the act with-
out more. Though these policies went into effect once issued,
Professor McDonald characterized them as a “stop-gap meas-
ure” until the university, its satellite campuses, and its indi-
vidual departments could enact final versions.

8 No. 25-2366
Professors Carr and Schuster challenged similar “interim”
policies adopted by Purdue University on: “Intellectual Di-
versity”; “Performance Reviews for Tenured, Tenure-Track,
Clinical/Professional and Research Faculty”; and “Operating
Procedures for Complaints Related to Intellectual Diversity.”
Purdue’s policies, unlike Indiana’s, spelled out the act’s re-
quirements in detail. But the Purdue policies—also effective
when issued—merely repeated the act’s requirements, so we
do not reproduce them here.
The professors asserted, through their complaints, affida-
vits, and deposition testimony, that the act and policies in-
fringed on their free-speech rights by forcing them to change
how and what they taught. Each professor believed that the
changes they felt compelled to make to their curricula ill-
served their students. But they felt those changes were re-
quired by the act and policies. Below we describe some of
these claimed injuries.
Professor McDonald. Professor McDonald, an ethnomu-
sicologist at Indiana University, is an expert within his disci-
pline on the Israel-Palestine conflict. He ordinarily would not
teach certain “divergent” scholarly perspectives about this
conflict, “including, for example, the assertion that Palestini-
ans do not exist and that their forcible dispossession in 1948
did not occur.” But he believes this is “precisely” what the act
and the university’s policies require of him. This belief led
him to “drastically” change the readings and other materials
he uses to teach. For example, he no longer assigns “canonical
works of Palestinian music, literature, and poetry ... fearing
that such materials could potentially be challenged as one-
sided” and thus expose him to “complaint, sanction, [and] de-
motion.”

No. 25-2366 9
Professor McDonald is unique among the professors in
that he is the only one to have received complaints about his
academic activities. Four people (only one a confirmed stu-
dent) complained that he espoused an “anti-Israel message”
during a talk he gave in late summer 2024 titled “Politics,
Thought, Voice.” The complaints were lodged with a student
group, which forwarded them to the university. University
officials contacted Professor McDonald about the complaints.
He provided them a copy of his remarks and exchanged
emails with them. These officials’ emails, he says, “clearly ref-
erenced” the act’s intellectual-diversity mandate. In the end,
Professor McDonald was not disciplined and has “heard
nothing since” these events occurred.
Professor Scheurich. Professor Scheurich teaches at Indi-
ana University on race, class, gender, sexuality, and disabili-
ties in the educational system and society. He believes the act
and the university’s policies require him to teach about per-
spectives he would otherwise omit—for example, whether di-
versity, equity, and inclusion efforts should be part of an ed-
ucation system. He also worries the act and policies require
him to give equal time to material that he deems “very bad
scholarship.” To that end, he incorporated a book he deemed
bad scholarship into one of his recent courses. But his stu-
dents reacted poorly and he now omits the book from his
courses. He says he is “perpetually at risk of employment ac-
tions,” though nothing in the record suggests he has suffered
any adverse consequences to date.
Professor Carr. Professor Carr teaches courses on media
and cultural studies at Purdue University. He similarly wor-
ries the act and policies require him to teach perspectives he
believes are unsound and has altered his communications

10 No. 25-2366
coursework accordingly. He limited the readings he assigned
in his graduate-level writing class to avoid materials a student
“could potentially challenge as one-sided, even though” he
considered those materials “exemplars of Communication
scholarship.”
Professor Schuster. Professor Schuster, an historian of the
United States, teaches about issues like the “culture wars”
surrounding the LGBTQ-rights movement in the 1990s. To
teach his students to draw parallels between past and present,
he used to begin each class period with an open-ended dis-
cussion of current events. But he stopped doing so. In his
judgment, this sort of free-flowing discussion “poses tremen-
dous risk” to him because “current events are often fraught
with moral, political, [or] religious” import. “If a student feels
unheard, dismissed, or targeted because of” a classmate’s
viewpoint or Professor Schuster’s attempt to moderate, he
feared he “may be held responsible for failing to create” the
requisite “culture” of “free expression, free inquiry, and intel-
lectual diversity.”
The State intervened again to defend the act. And the dis-
trict court, with the parties’ consent, consolidated both actions
into one. Relevant here, the State and universities then moved
to dismiss for lack of standing.
The State argued 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. See Killeen, 968 F.3d at 638
(citing Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158–59
(2014)); id. at 639 n.1. Similarly, the universities argued the
professors’ challenge to the policies failed because the policies

No. 25-2366 11
were “interim and subject to revision amid ongoing imple-
mentation efforts.”
The district court credited the professors’ statements that
they curbed their teaching practices in fear of the act and pol-
icies. Carr II, 2025 WL 2106496, at *6. But the court deemed
their fear unreasonable because they did not face a credible
threat of imminent enforcement. Id. The court again said the
professors need not fear the act would be enforced against
them because the act does not apply directly to faculty. Id.
And the court deemed the professors’ fear of the policies un-
reasonable because the policies were not yet final. “At the
time this lawsuit was filed,” the court said, “those policies
were nothing more than preliminary and interim measures,
with policymaking and implementation still ongoing.” Id. at
*7. The professors “d[id] not claim that the Universities have
instructed them to change their syllabi or pedagogies or that
the Universities have received any complaints against them
since these policies took effect.” Id. at *8. With no “action or
threatened action” taken against them, the court concluded
the professors faced no credible threat of enforcement and
thus lacked injury and standing. Id.
Accordingly, the court dismissed the suit for lack of sub-
ject-matter jurisdiction and denied the professors’ request for
a preliminary injunction. The professors appealed. They urge
us to hold they have standing and to enjoin the act and poli-
cies as facially unconstitutional.
II. Discussion
We hold that the professors lack injuries-in-fact and thus
Article III standing. We affirm on this basis, and so we do not
address ripeness or the professors’ request for a preliminary

12 No. 25-2366
injunction. We stress that our inquiry is simply whether—un-
der the applicable pleading standard—the professors have
shown either a credible threat that the State or universities
will enforce the law or policies against them, or an objectively
reasonable chilling effect on their speech. Neither the act’s in-
direct effect on the professors nor the interim nature of the
policies is dispositive.
We proceed in two parts. First, we set out Article III’s
standing requirement in the context of a pre-enforcement
challenge under the First Amendment. Second, we explain
that the professors have not shown a sufficient injury-in-fact
to sue in federal court.
A. Article III Standing
Article III limits federal courts to deciding “Cases” and
“Controversies.” U.S. Const. art. III, § 2. “No matter how im-
portant a legal question or how sincere a worry, we must en-
sure the presence of a Case or Controversy” before addressing
the merits. Parents Protecting Our Children, UA v. Eau Claire
Area School District, 95 F.4th 501, 504 (7th Cir. 2024).
This requirement helps us “distinguish cases and contro-
versies fit for judicial resolution from questions of public pol-
icy reserved to the elected branches or abstract disputes better
left to the debating hall.” First Choice Women’s Resource Cen-
ters, Inc. v. Davenport, 146 S. Ct. 1114, 1121–22 (2026). We are,
after all, the “least democratic branch.” Peltier v. Assumption
Parish Police Jury, 638 F.2d 21, 22 (5th Cir. 1981) (citation omit-
ted). The requirement also reflects concerns about federalism,
which are especially important “where, as here, the relief
sought implicates” a state or local policy. Parents Protecting,
95 F.4th at 506.

No. 25-2366 13
The doctrine of standing flows from and implements the
case-or-c ontroversy requirement. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560–61 (1992); Trump v. New York, 592 U.S. 125,
131 (2020) (per curiam). It does so by requiring the party in-
voking federal-court jurisdiction to show (among other
things) that he has suffered an injury-in-fact. Lujan, 504 U.S.
at 560–61. A plaintiff suffers an injury-in-fact if his alleged
harm is “concrete, particularized, and imminent rather than
conjectural or hypothetical.” Trump, 592 U.S. at 131 (citation
omitted). If a plaintiff cannot show he has suffered an injury-
in-fact, federal courts must “stay on the sidelines.” Parents
Protecting, 95 F.4th at 507.
The professors allege the act and policies are facially un-
constitutional and have harmed them, but they sued before
the act or policies have been enforced against them. This does
not necessarily mean they lack an injury-in-fact. A plaintiff
“does not have to await the consummation of [a] threatened
injury to obtain preventive relief.” Center for Individual Free-
dom v. Madigan, 697 F.3d 464, 473 (7th Cir. 2012) (quoting Bab-
bitt, 442 U.S. at 298). Rather, a plaintiff may show injury in this
context in o ne of two ways. Id. at 474. First, he may show he
is presently injured because his speech has been chilled, mean-
ing 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. Id. (citation omitted). Second, he may show he
faces an imminent future injury if he intends to engage in
speech arguably protected by the First Amendment “but pro-
scribed by” the challenged statute and faces “a credible threat
of prosecution thereunder.” Babbitt, 442 U.S. at 298.
We note these two theories of injury-in-fact often overlap.
Killeen, 968 F.3d at 639 n.1. Both require a plaintiff to allege a

14 No. 25-2366
credible threat of enforcement against him. Id. “[W]ithout
one, a putative plaintiff can establish neither” that he has “an
objectively good reason for refraining from speaking and
‘self-censoring’” nor “a realistic threat of legal sanction if he
engages in the speech in question.” Id. (quoting Abbott v. Pas-
tides, 900 F.3d 160, 176 (4th Cir. 2018); see Greenberg v. Lehocky,
81 F.4th 376, 388 (3d Cir. 2023) (credible threat required under
both theories).
This is because the mere chilling effect of an unconstitu-
tional law or policy being on the books is not enough to
demonstrate injury-in-fact pre-enforcement. Whole Woman’s
Health v. Jackson, 595 U.S. 30, 50 (2021). Speculation that a law
or policy will be wielded in an unconstitutional manner also
falls short. See City of Los Angeles v. Lyons, 461 U.S. 95, 105–06
(1983); Schirmer v. Nagode, 621 F.3d 581, 587–88 (7th Cir. 2010).
Rather, a plaintiff must show a credible threat resulting from
the “operation or enforcement” of the act or policies. Babbitt,
442 U.S. at 298.
B. The Professors’ Purported Injuries
With this framework in mind, we turn to our standing
analysis. In doing so, we note that the district court construed
the motions to dismiss as a factual challenge to standing.
While a facial challenge to standing asserts that a plaintiff has
not sufficiently alleged standing in his complaint, a factual
challenge asserts there is in fact no standing. In re Recalled Ab-
bott Infant Formula Products Liability Litigation, 97 F.4th 525, 528
(7th Cir. 2024). A factual challenge requires a plaintiff to ad-
duce specific evidence to prove standing. Flynn v. FCA US
LLC, 39 F.4th 946, 952 (7th Cir. 2022). In this context, “the court
may consider and weigh evidence outside the pleadings to
determine whether it has power to adjudicate the action.”

No. 25-2366 15
Bazile v. Finance System of Green Bay, Inc., 983 F.3d 274, 279 (7th
Cir. 2020). A district court may permit jurisdictional discovery
when appropriate. E.g., North Texas Equal Access Fund v.
Thomas More Society, 728 F. Supp. 3d 887, 900 (N.D. Ill. 2024).
The parties have treated this as a factual challenge on ap-
peal, too. They have relied on evidence outside the pleadings
like affidavits and deposition testimony. We review the dis-
trict court’s legal conclusions de novo and any factual findings
for clear error. Reid L. v. Illinois State Board of Education, 358
F.3d 511, 515 (7th Cir. 2004).
The State argues that the professors lack standing to chal-
lenge the act for a simple reason: Because the act only indi-
rectly affects professors, the professors cannot show a credi-
ble threat of enforcement or an objectively reasonable chilling
effect on their speech. So even if the professors actually fear
the act will be enforced against them, the State calls this fear
unreasonable.
But the professors do not lack standing merely because the
act applies to them indirectly. “[G]overnmental action may be
subject to constitutional challenge even though it has only an
indirect effect on the exercise of First Amendment rights.”
Laird v. Tatum, 408 U.S. 1, 12–13 (1972). The act mandates that
universities adopt certain policies that in turn must be applied
to the professors when they seek promotion or when a uni-
versity reviews their performance. E.g., I.C. § 21-39.5-2-1(b).
Here the State cannot insulate itself from constitutional claims
by acting through a proxy, especially when that proxy is itself
an arm of the State.
This is not to say the indirect nature of the act’s application
is irrelevant to a standing analysis. Standing is a fact-specific

16 No. 25-2366
inquiry and “not discernible by any precise test.” Babbitt, 442
U.S. at 297. This includes the injury aspect, which “cannot be
defined so as to make” analyzing standing “a mechanical ex-
ercise.” Allen v. Wright, 468 U.S. 737, 751 (1984), abrogated in
part on other grounds by Lexmark International, Inc. v. Static Con-
trol Components, Inc., 572 U.S. 118 (2014). Here, the act’s indi-
rect effect on the professors bears on whether the specter of
enforcement—their purported injury—is credible. The State
and universities could use that as a step in their argument that
the professors lack standing. But it does not categorically pre-
clude the professors from alleging an injury-in-fact.
Nor are we persuaded by a similar argument the State and
universities renew on appeal: that the professors lack injury
merely because (1) the policies they challenge can change and
(2) the universities’ satellite campuses and academic depart-
ments have yet to enact policies fleshing out the university-
wide ones. Everyone agrees the universities’ policies incorpo-
rate the act’s requirements and now apply to the professors.
And everyone likewise agrees that future department-specific
policies must align with the act and current university-wide
policies. That the universities could add to, change, or supple-
ment policies does not necessarily mean the professors suf-
fered no injury under the policies in force when they sued. See
Laird, 408 U.S. at 11 (noting standing exists when a chilling
effect occurs because a plaintiff is “either presently or pro-
spectively subject to” a challenged policy). Imagine where a
contrary conclusion would lead. The universities could tell
the professors that they planned to bar any mention of a dis-
favored political party but slap an “interim” label on the pol-
icy pronouncement to avoid a constitutional challenge.

No. 25-2366 17
Nonetheless, we conclude the professors lack standing.
The record does not show a credible threat of enforcement or
an objectively reasonable chilling effect on their speech. We
cannot discern how the act or policies compel the professors
to self-censor as they did, or how the act or policies create a
credible threat of enforcement.
The professors argue that the act and policies have curbed
their protected academic speech, forcing them to: alter the
readings they assign and discuss; restrict the content they pre-
sent in class; and restructure their courses. But nothing on the
books commands the professors to do anything concrete, in-
cluding adopting these changes.
The act mandates that the universities adopt and enforce
certain general policies. E.g., I.C. § 21-39.5-2-1(b). It leaves to
the universities filling out the details and, ultimately, judging
whether faculty have complied. Id. § 21-39.5-2-2(a), (h)(2). The
policies adopted so far merely reflect the act’s general require-
ments; they do not reveal whether or to what extent the pro-
fessors’ uncensored speech would violate the act or policies.
Take, for example, Professor Scheurich’s assertion that he
taught a book he would not otherwise teach—one he deemed
“bad scholarship”—to avoid punishment. He asserts the act
and policies required this change. But he does not (and we
cannot) connect this change to a concrete mandate in the act
or policies. The act and policies require faculty to teach “di-
vergent” and “scholarly” perspectives. See id. § 21-39.5-1-5.
But they do not define “divergent” or “scholarly.” Without
more, we cannot determine whether P rofessor Scheurich had
to alter his speech—by choosing now to teach this particular
book in this particular course—or risk discipline. In fact, the
record suggests the opposite: that any fear Professor

18 No. 25-2366
Scheurich had was not well-founded. He stopped teaching
the book and faced no discipline.
The professors nonetheless argue they face a credible
threat like the plaintiffs in Babbitt v. United Farm Workers Na-
tional Union. But even Babbitt undercuts their position. In Bab-
bitt, a union lodged a pre-enforcement First Amendment chal-
lenge to a criminal statute regulating consumer-publicity
campaigns against agricultural products. 442 U.S. at 301. The
Supreme Court concluded the union faced a credible threat of
enforcement because the statute directly bore on its past and
future publicity efforts, and the state had not disclaimed en-
forcing the statute against the union. Id. at 302.
The professors have not made the same showing here.
They have not alleged or shown that their uncensored speech
would violate the challenged act or policies. The “mere exist-
ence” of the act and policies is not enough. Laird, 408 U.S. at
10. An alleged injury must be “fairly traceable” to the chal-
lenged act or policy to be an injury-in-fact. Clapper v. Amnesty
International USA, 568 U.S. 398, 409 (2013) (citation omitted).
To be sure, the professors assert 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. Id. at 417–18. “If the law were oth-
erwise, an enterprising plaintiff would be able to secure a
lower standard for Article III standing simply by making an
expenditure based on a nonparanoid fear.” Id. at 416.
Nor can we find a credible threat based on enforcement
evidence. Babbitt, 442 U.S. at 298. We do not know how the
universities have enforced or plan to enforce the act and pol-
icies, let alone whether the universities will enforce them as
the professors anticipate. Indeed, it appears the universities

No. 25-2366 19
had not enforced the act or policies against any faculty when
this suit was filed in July 2025. Of course, this standing in-
quiry could change if these universities enforce the policies.
The professors argue the complaints about Professor
McDonald’s allegedly “anti-Israel” comments show they face
a credible threat of enforcement and have reasonably chilled
their speech. But this episode provides little insight into what
threat Professor McDonald or the other professors face from
the universities under the act or policies. These complaints
were lodged informally to a student group, forwarded to the
university, and ultimately led nowhere: Professor McDonald
was never even threatened with discipline following these
complaints. It is hard to see how this complaint shows a threat
of enforcement.
The professors cite, for the first time on appeal, some news
articles from November and December 2025 (after they filed
their complaints), reporting the universities have disciplined
other faculty. Setting aside that these articles were not pre-
sented below, they do not tell us much. It would be one thing
if the disciplined professors were like the professors here. But
the professors here do not explain (and we cannot discern)
whether they are like the disciplined professors. This particu-
larity is an essential piece of an injury: “For either that credi-
ble threat of enforcement or chilling effect to be particular-
ized, it must affect the plaintiff in a personal and individual
way.” Killeen, 968 F.3d at 638–39 (cleaned up) (citing Spokeo,
Inc. v. Robins, 578 U.S. 330, 339 (2016)) (emphasis added).
These disciplinary actions do not show a credible threat of fu-
ture enforcement against the professors.
The professors also say that they face a credible threat, and
thus reasonably chilled their speech, because the universities

20 No. 25-2366
have not disclaimed enforcing the act and policies against
them. In support, they cite 303 Creative LLC v. Elenis, 600 U.S.
570 (2023), Holder v. Humanitarian Law Project, 561 U.S. 1
(2010), Brown v. Kemp, 86 F.4th 745 (7th Cir. 2023), and Indiana
Right to Life Victory Fund v. Morales, 112 F.4th 466 (7th Cir.
2024).
To be sure, failing to disclaim enforcement is some evi-
dence of a credible threat. But none of these precedents say it
is enough. Both 303 Creative and Humanitarian Law Project
cited other factors in finding a credible threat. I n 303 Creative,
the state had “a history of past enforcement against nearly
identical conduct” as the plaintiff’s and it had not disclaimed
doing the same to the plaintiff. 600 U.S. at 583. In Humanitar-
ian Law Project, the plaintiffs claimed their past conduct vio-
lated the challenged statute and that they would continue this
conduct absent the statute; plus, there the government had al-
ready charged about 150 people for violating the same provi-
sions the plaintiffs challenged. 561 U.S. at 15–16. The Court
was thus satisfied the plaintiffs would “be prosecuted if they
do what they say they wish to do.” Id. at 16.
Nor do Brown or Indiana Right to Life Victory Fund suggest
otherwise. The plaintiffs’ conduct in Brown fell squarely
within the challenged statute; officials had threatened to pros-
ecute them before and continued to prosecute others like
them. 86 F.4th at 768–70. In Indiana Right to Life Victory Fund,
we held that a plaintiff’s well-founded fear of enforcement
did not evaporate merely because some—but not all—de-
fendants disclaimed enforcing the challenged statute. 112
F.4th at 470.
Perhaps the professors disagree with Indiana’s decision to
adopt the act, find the act’s mandates improper, or conclude

No. 25-2366 21
the act is inherently dangerous because it is subject to misuse,
prompting them to self-censor. But such “subjective chill” al-
legations are no injury. Laird, 408 U.S. at 13–14 (cleaned up).
Permitting such a suit “would have the federal courts as vir-
tually continuing monitors of the wisdom and soundness of”
state-level policy, which “is not the role of the judiciary, ab-
sent actual present or immediately threatened injury resulting
from unlawful government action.” Id. at 15.
This is not to say the professors will never face a credible
threat of enforcement or reasonably chill their speech in re-
sponse to a well-founded fear. The facts on the ground could
change from those in the record now, leading to a new chal-
lenge. But with no credible threat or reasonable chilling dis-
cernable here, the professors have no injury; with no injury
they have no standing; and with no standing they present no
case or controversy permitting federal-court intervention.
III. Conclusion
For the reasons set forth above, we AFFIRM the district
court’s judgment dismissing for lack of subject-matter juris-
diction.

22 No. 25-2366
EASTERBROOK, Circuit Judge, concurring. I agree with my
colleagues that plaintiffs lack standing, and I join the court’s
opinion fully.
What is more, I do not see how the plaintiffs have ad-
vanced a plausible argument under the First Amendment.
Plaintiffs suppose that professors hold rights against univer-
sities about what shall be taught. Yet academic freedom be-
longs to the university. “It is the business of a university to
provide that atmosphere which is most conducive to specula-
tion, experiment and creation. It is an atmosphere in which
there prevail the four essential freedoms of a university—to de-
termine for itself on academic grounds who may teach, what
may be taught, how it shall be taught, and who may be ad-
mitted to study.” Sweezy v. New Hampshire, 354 U.S. 234, 263
(1957) (Frankfurter & Harlan, JJ., concurring) (cleaned up; em-
phasis added). A university has the right to insist that profes-
sors provide the sort of education that the school promises to
students but can deliver only through agents. See also Kilborn
v. Amidiris, 135 F.4th 1100 (7th Cir. 2025) (opinion respecting
the denial of rehearing en banc); Urofsky v. Gilmore, 216 F.3d
401, 412–13 (4th Cir. 2000) (en banc). Contra, Pernell v. Florida
State University System, 181 F.4th 1135 (11th Cir. 2026). (Obvi-
ously, I agree with the dissent in Pernell and need not repeat
what Judge Lagoa explains at length.)
Indiana University is not complaining—nor could it. The
University is a part of the State of Indiana, which like other
governments has a right to convey its own message. Arkansas
Educational Television Commission v. Forbes, 523 U.S. 666 (1998);
Pleasant Grove v. Summum, 555 U.S. 460 (2009). To enjoy this
right the University must have teachers who will present the
course of instruction it specifies. Professors’ speech in class

No. 25-2366 23
has not been regulated; it has been hired. See Garcetti v. Ce-
ballos, 547 U.S. 410 (2006) (First Amendment does not give em-
ployees rights vis-à-vis their employers concerning speech in
the course of employment); Mayer v. Monroe Community School
Corp., 474 F.3d 477, 480 (7th Cir. 2007) (academic “employers
are entitled to control speech from an instructor to a student
on college grounds during working hours”).
Many students want to receive educations in which pro-
fessors “foster a culture of free inquiry, free expression, and
intellectual diversity” and “refrain[] from subjecting students
to views and opinions concerning matters not related to the
faculty member’s academic discipline or assigned course of
instruction.” Ind. Code §21-39.5-2-2(a). But, if plaintiffs are
right, colleges that make such promises to students (and their
paying parents) are powerless to deliver on them. Faculty
may choose to provide tendentious screeds instead, denying
their institutions the ability to provide students with a partic-
ular kind of educational experience.
Government need not specify all details in order to be a
speaker. Whether to teach ethnomusicology at all, and if so
how, is a question for a state university to answer, rather than
for judges and juries to prescribe in the name of the First
Amendment. Likewise with whether a person hired to teach
economics must offer that subject rather than musicology. In-
diana has chosen to specify, through Ind. Code §§ 21-39.5-1-1
to 21-39.5-6-2, only a segment of the University’s educational
approach, but this restraint does not prevent the University
from standing on its prerogative to decide what to teach. In-
diana could not compel a private university to follow the ap-
proach laid out in this statute, but Indiana may choose to offer
it for itself and see how it fares in the marketplace of ideas.