Michigan State University is facing a federal lawsuit challenging recent revisions to its Board of Trustees’ code of ethics.
The Foundation for Individual Rights and Expression, a national nonprofit organization, is representing university trustee Michael Balow in the lawsuit.
“MSU’s revised code censors dissent,” said FIRE attorney Heather Pincus. “If a trustee criticizes a board decision, the trustee could suffer serious consequences, up to referral for removal from office. But if a trustee praises a board decision, the code imposes no consequences. That’s viewpoint discrimination, which the First Amendment forbids.”
The revised policy requires trustees to “uphold the university’s reputation” and states trustees “will not undermine and will support the majority decision of the board.” It also requires trustees to raise concerns in “appropriate settings” before board action and sign an acknowledgement agreeing to comply or face sanctions.
“But what exactly does ‘undermine’ mean, and who gets to decide?” said Balow. “The majority of the board? The amended code also requires that we will ‘not provide inaccurate, misleading, or false information concerning the University.’ But who gets to decide what is ‘inaccurate’? Again, the majority of the board?”
According to the foundation, the revisions were made after Balow called out the university for withholding documents related to the Larry Nassar scandal and a $100 million private-equity investment in the school’s athletics program.
“For those of us who disagree with a majority decision of the board, these changes force us to either be silent or risk serious punishment, including referral for removal from office,” Balow told The Center Square in an exclusive interview. “And the code requires that we agree to comply with it. The purpose of this code and loyalty pledge is to stifle the speech that we think is necessary in our governance and oversight duties.”
Balow refused to sign off on the new code of ethics, which led to the board imposing “all sorts of punishments and obstacles to carrying out his duties,” according to Pincus.
Balow detailed those sanctions.
“MSU sends its trustees to conferences, athletic events, and ceremonial gatherings, so that we can understand what matters to the MSU community, learn to tackle important challenges, and build relationships with the people we represent,” Balow said. “Because I haven’t signed the board’s loyalty pledge, they have cut off my funding and credentials to attend these essential events. It’s as simple as this: I can’t do my job effectively if I’m kept out of the community.”
The lawsuit was filed in the U.S. District Court for the Western District of Michigan in late October. It came after a May letter from FIRE to the board urging them to revise the code by June 12, as previously reported on by The Center Square.
The university, which is a public university that receives a portion of its funding from taxpayers, is arguing that the revisions reflect policies at other Michigan institutions.
“The Board of Governors at Wayne State University also have a Code of Conduct, which includes provisions similar to the Code of Ethics and Conduct approved by a majority of the MSU Trustees,” said MSU Board of Trustees Board Chair Brianna Scott in a statement provided to The Center Square by the university. “Trustees are elected officials with a responsibility to communicate their actions as office holders … Healthy debate and independent viewpoints are important parts of university governance.”
Scott, listed as the defendant in the lawsuit, defended the code.
“The purpose of the Code of Ethics and Conduct is to help ensure the board can effectively govern in service to students, faculty, staff, parents, research partners, taxpayers and the broader public,” she said. “The code does not limit speech or restrict members of governing boards from raising concerns, providing oversight or questioning decisions; instead, it establishes good and commonsense governance practices.”
FIRE disagrees.
“FIRE took up this case because the revised code clearly violates the First Amendment,” Pincus said. “We’re proud to be representing Michael and helping to vindicate his First Amendment rights. Elected officials shouldn’t have to choose between their constitutional right to dissent and their ability to do their job.”
Balow is the only Republican on the nine-member Board of Trustees, whose members are elected.
“Board majorities may be able to swing votes, and so it goes in our republic,” Balow said. “But majorities should not, and cannot, take punitive action to silence those in the minority simply because they deem that speech inconvenient.”
He added that the standard the university sets is important.
“MSU is a place where a relentless, rigorous approach to finding the truth is expected in the classrooms,” Balow said. “The example we set for our students is important. Either we value an exhaustive approach to discussing the great issues of the day or we do not. Never would I behave in the majority to silence the minority; I expect the same of my colleagues.”
The lawsuit is seeking a jury trial.
“Whether it’s in Congress or a university boardroom, the First Amendment doesn’t let the majority silence dissenters,” Pincus said. “The people of Michigan elected Michael to be their voice. MSU is trying to silence that voice with a speech code, but Michiganders deserve to know what their elected trustees think about important issues.”
The university told The Center Square it plans to fight the lawsuit in court.
“The purpose of the code is to help ensure the Board can effectively govern in service to students, faculty, staff, parents, research partners, taxpayers and the broader public,” said Emily Gerkin Guerrant, MSU’s vice president and chief communications officer. “Trustees are expected to ask hard questions and engage in robust discussions. The purpose of the policy is to reinforce the fiduciary, ethical, and professional responsibilities that accompany governing a major public institution.”
