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In Idaho, don’t say ‘abortion’? A state law limits teachers at public universities, they say

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In Idaho, don’t say ‘abortion’? A state law limits teachers at public universities, they say



Idaho’s public university professors say a law barring state employees from ‘promoting’ or ‘counseling in favor of’ abortion limits their ability to teach.

This story was published in partnership with the Center for Public Integrity, a newsroom that investigates inequality.

University of Idaho student Bergen Kludt-Painter started school in August 2022, a few months after a U.S. Supreme Court decision struck down Roe v. Wade. Soon after, abortion was banned in Idaho in almost all instances.

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The political science major was eager to discuss the precedent-shattering case in class, but, she said, “we talked about everything except for abortion.”

During a political science course on how to write a research paper, her professor said he could not give her feedback on her chosen topic — abortion. The issue didn’t come up in her other political science classes either, even as state after state changed their abortion laws. Nor did abortion get mentioned in her Introduction to Women’s Gender and Sexuality Studies course.

“It wasn’t discussed,” she said, “which I found odd, personally, because it feels like something that would be relevant to talk about in a class like that.”

But few, if any, public university professors in Idaho are talking about or assigning readings on abortion these days. That’s due to a 2021 law that makes it illegal for state employees to “promote abortion” or “counsel in favor of abortion.” Professors have said those two phrases put them at risk of violating the law, known as the No Public Funds for Abortion Act, just for discussing abortion in class. The possible penalties include significant fines and even prison time.

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Six named University of Idaho professors and two faculty unions filed a lawsuit against the state in August for violating their First Amendment right to free speech and academic freedom and their 14th Amendment right to a clearly worded law. Lawyers from the American Civil Liberties Union are representing the professors.

“The more I heard about it, the more worried I was that I really can’t teach my class in a responsible way without putting myself at risk,” said Aleta Quinn, an associate professor of philosophy for the University of Idaho and a plaintiff in the case.

Quinn teaches a course in biomedical ethics that typically features readings and class discussions about abortion. When she saw that the highest penalty for breaking the law was 14 years in prison, “I decided I would not — I couldn’t — teach the subject of abortion.”

The bulk of the arguments in the case center on the due process clause of the 14th Amendment, which the Supreme Court has interpreted to mean that a statute “so vague that men of common intelligence must necessarily guess at its meaning” violates a person’s right to fair treatment under the law. 

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The case also raises an important First Amendment question about protections for academic freedom in America: Are public university professors exempt from laws that could otherwise govern the speech of state employees?

Supreme Court precedent suggests the government has significant leeway to regulate the speech of the people it employs while they are performing their professional duties.

Still, the most recent court opinion on the issue left open the question of how much that speech could be regulated for one key group: public university professors. 

“We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching,” then Justice Anthony Kennedy wrote in the 2006 majority opinion in Garcetti v. Ceballos.

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The Supreme Court has not yet returned to that decision. 

“So establishing that legal principle, in and of itself, is an important endeavor for those [Idaho] professors,” said Helen Norton, a professor of constitutional law at the University of Colorado who is not involved in the case.

Interestingly, none of the professors suing in the Idaho case are nursing instructors or even biology professors. They aren’t teaching anyone about the physical nature of abortion. Their concerns, as scholars of subjects like philosophy, political science, gender studies and English, are focused on whether they can speak about abortion as an ethical, political and historical issue.  

For example, a sworn statement by an English professor named in the case explained that he used to assign Sallie Tisdale’s 1987 Harper’s Magazine essay, “We Do Abortions Here,” in one of his classes. The essay about her work as a nurse in an abortion clinic explores the complicated morality of helping women end their pregnancies. It’s also considered to be an example of powerful writing. He has now removed it from his syllabus.

Lawyers for the state of Idaho agree that professors fall under a different regulatory framework than other public employees when it comes to what they are permitted to say in the course of their duties. In their motion to dismiss the lawsuit, the state’s attorneys concede that settled law establishes protections for academics’ speech.

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A month after the case was filed, Idaho’s attorney general, a defendant in the case, issued a non-binding opinion that the law does not apply to the “teaching or scholarship” of public university professors. If it did, Raul Labrador wrote, “the prohibition would likely be unconstitutional.”

A spokesperson for the attorney general’s office declined to respond to repeated requests for an interview.

Republican state Rep. Bruce Skaug, the sponsor of the No Public Funds for Abortion Act, later introduced legislation to create a specific protection for classroom discussion of abortion, but it failed to pass. Skaug did not respond to requests for an interview.

Rather than arguing about the First Amendment claim, lawyers for the state focused on the professors’ assertion that the law is unconstitutionally vague under the 14th Amendment.

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“Plaintiffs have alleged that there is a law that prohibits them from teaching college courses concerning abortion, producing scholarship in favor of abortion, and grading papers concerning abortion,” the state’s lawyers write in the November motion to dismiss. “There is no such law in the state of Idaho.”

The state’s attorneys argue that any reasonable reader of the law would see that the statute refers only to the act of advising a specific person to have an abortion. As written, they argue the law could not be interpreted as a prohibition on, say, giving a strong grade on a writing assignment where the student had chosen to make an ethical argument in favor of abortion. 

Because of the attorney general’s opinion and the “plain language” in the law, the state’s lawyers say the professors are imagining themselves to be at risk of prosecution when, in reality, no such risk exists.  

Lawyers for the plaintiffs disagree. Federal courts have issued rulings with varied interpretations of the word “promote.” And the lawsuit offers numerous hypothetical situations in which a professor could be prosecuted for promoting abortion even if that were not their intent.

Norton, the University of Colorado law professor, said it was reasonable for the professors to question the law’s language.

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“That’s shown so far to be the focus of the dispute — what does ‘promoting’ or ‘counseling’ mean?” she said. “And it seems like that’s an important thing to nail down.”

Because there’s no definition of the terms in the law, she said, “there’s absolutely room for folks to argue about whether or not we should be quick or slow to interpret broadly or narrowly.”

The current case challenging Idaho’s No Public Funds for Abortion Act does not directly include the state’s many other public employees, like social workers and school counselors, who are unlikely to qualify for any special First Amendment protections. 

Public school teachers in the K-12 system do not have the same level of academic freedom protections as professors, either. But a high school history teacher could face the same concerns that speaking about abortion in class could be construed as either promoting or counseling in favor of it. 

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However, those employees would no longer have their speech curtailed if the professors prevail and a court strikes the law down.

That matters because Idaho’s restrictions surrounding abortion are so tight at this point that nearly every other action connected to encouraging abortion has been outlawed some other way. At this point, regulating how public employees speak about abortion is arguably the only thing the No Public Funds law still does. Opponents of the law have questioned why the state is fighting to uphold it, if not to limit speech about abortion.

Wendy Heipt, a reproductive rights attorney with Legal Voice who is working on a challenge to Idaho’s ban on helping minors travel to receive abortions without parental consent, calls the state Legislature “extremist.” She worries that the state has become a “testing ground” for the far right.

“You would notice [these laws] in Texas,” where more than 30 million people live, she said, “not Idaho,” home to less than 2 million.

Indeed, copycat travel ban bills restricting the movement of minors seeking an abortion were introduced in Alabama, Tennessee, Mississippi and Oklahoma this session, according to the Guttmacher Institute, a research and policy organization that works to advance sexual and reproductive health and rights.

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No one interviewed for this story had heard about a copycat law that raised the same combination of First and 14th Amendment concerns as Idaho’s No Public Funds measure.

A judge heard the professors’ case in Idaho District Court in April. His decision on whether the preliminary injunction they’ve asked for will be granted is expected soon. The judge could also decide to dismiss the case, as the attorney general’s office has proposed. If the judge doesn’t dismiss the case, he will likely ask both parties to reconvene for another hearing before a final resolution.

In the meantime, professors are continuing to stay quiet about abortion in class. 

For someone dedicated to the free exchange of ideas like Quinn, that silence feels wrong. When she started teaching, her goal was to make the world a slightly better place by helping young people learn how to think, not what to think. She feels like she’s not fulfilling her duty to her students by ignoring an ethical debate as relevant to daily life as abortion.

“Philosophy is thinking critically about ideas and concepts and arguments, and considering which arguments are stronger and which are weaker and how they apply and all their implications,” Quinn said. “My goal is to enable people to have the skills to evaluate positions on their own.”

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Kludt-Painter, the University of Idaho student, is the president of the Young Democrats. But her issues with the No Public Funds law weren’t about the politics of abortion. It’s an education she wants and feels she is being at least partially denied.

“It’s a form of censorship,” she said. “College students should be able to handle hearing about these difficult topics. And educators should be able to discuss them and have a free exchange of ideas without being worried about getting fired or having criminal charges be brought against them.”

Hayden Cassinelli, the vice president of the College Republicans at the University of Idaho, said the topic of abortion came up in one of his classes recently but was “quickly avoided” when a teaching assistant told students he couldn’t discuss it. 

Despite Cassinelli’s opposition to abortion, the sophomore education major believes the topic should be discussed in class. He doesn’t think the No Public Funds law prevents such discussions. But he supported his university’s decision to issue guidance to professors in fall 2022, urging them to be cautious when talking about abortion.

“Given many professors’ thoughts on abortion — including the fact that some of them may advocate for it and [encourage] a student to commit a crime — a temporary hold on any abortion-related discussion until legal clarity is established is a sound decision,” Cassinelli wrote in an email.

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Kludt-Painter thinks professors are just trying to protect their jobs when they avoid discussing abortion in class, but she wishes they didn’t feel that way. 

“It takes away from the whole academic freedom thing that post-secondary education is supposed to be about,” she said.

This story was published in partnership with the Center for Public Integrity, a newsroom that investigates inequality.



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After Decades, Voters Finally OK Replacement for Crumbling Idaho School

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After Decades, Voters Finally OK Replacement for Crumbling Idaho School


This article was produced for ProPublica’s Local Reporting Network in partnership with the Idaho Statesman. Sign up for Dispatches to get stories like this one as soon as they are published.

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The Salmon School District in remote Central Idaho will finally get a new school.

After decades in which voters rejected every bond the district asked for, the community on Tuesday approved a $20 million bond to build a new pre-K-through-8 school with a resounding 72% support.

The election comes after the Idaho Statesman and ProPublica reported last year on how children across the state were learning in schools with freezing classrooms, leaking roofs and discolored water. Salmon was one of the most poignant examples — in the last two decades, the district failed to pass around a dozen bonds to replace its dilapidated schools. Idaho is one of just two states that require support from two-thirds of voters to pass a bond.

At Salmon’s Pioneer Elementary, the plumbing is failing, the floors are uneven and pose tripping hazards, and sewage sometimes backs up into a corner of the kitchen. Parts of the building aren’t accessible for students with disabilities. The foundation is crumbling.

Unable to pass a bond or to find other ways to fix these problems, the district turned to a state program created in 2006. It was one of only two districts ever to do so. But a state panel decided that Salmon’s problems — though bad enough to pose safety hazards — did not warrant a new school, only new roofs and seismic reinforcements. After that process, the district ultimately decided to close its middle school, which now sits abandoned beside the elementary school, surrounded by a razor-wire fence.

When the Statesman and ProPublica visited the elementary school last year, reporters saw many of the same problems the school had said it had about a decade ago, when it first applied for help from the state.

Over the past several months, a group called the Salmon Schools Needs Assessment Committee has been active on social media to provide information about the bond and share the challenges that the elementary school faces. In a Facebook post Wednesday, the committee said it was “overcome with gratitude and excitement.”

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Jill Patton, the principal of the elementary school, said she is “deeply thankful” that the community came together to support the district’s schools. She praised the grassroots initiative spearheaded by the assessment committee.

The effort “involved a remarkable group that dedicated countless hours to understanding community concerns and identifying preferred solutions,” she said in an email. “They meticulously developed a plan that the community could rally behind.”

Since 2006, the news organizations reported, fewer than half of all Idaho school bonds have passed, but that 80% of them would have passed if a simple majority were required.

Idaho lawmakers considered a proposal that would have started the process to lower the vote threshold needed to pass a school bond, but the effort did not move forward during the legislative session.

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Legislators did approve $2 billion in funding over a decade to repair and replace schools. The measure was signed by Republican Gov. Brad Little, who cited the investigation and called school funding “priority No. 1” in his State of the State address in January.

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Election 2024: Biden wins Idaho Democratic Party’s presidential caucus • Idaho Capital Sun

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Election 2024: Biden wins Idaho Democratic Party’s presidential caucus • Idaho Capital Sun


President Joe Biden cruised to victory in Thursday’s Idaho Democratic Caucus, claiming 95% of the votes to win the six-candidate caucus outright, the Idaho Democratic Party announced. 

Results released late Thursday night by the Idaho Democratic Party showed Biden won more votes than all the other candidates combined. 

  • Biden: 2,297 votes, 95% 
  • David Olscamp: 14 votes, 0.5%
  • Jason Palmer: five votes, 0.2%
  • Armando Perez-Serrato: three votes, 0.1%
  • Dean Phillips: 14 votes, 0.5%
  • Marianne Williamson: 79 votes, 3.28%

The Idaho Democratic Party reported there were 2,412 votes cast in Thursday’s caucus.

Ada County Democrats Chair Erik Berg, seated at center, helps volunteers count the ballots after Thursday’s Idaho Democratic Caucus at Timberline High School in Boise. (Clark Corbin/Idaho Capital Sun)

A total of 2,412 votes means turnout was exceedingly low on Thursday. However, calculating the percentage of voter turnout could be tricky because Democrats and unaffiliated voters were allowed to vote in the caucus.

The Idaho Secretary of State’s Office reports there are 125,585 registered Democratic voters in the state. Based only on the pool of 125,585 Democratic voters, turnout could be calculated at about 1.9%, but that calculation would ignore the fact that some unaffiliated voters did vote in the Democratic caucus. The Democratic Party did not indicate the number of unaffiliated voters who cast ballots Thursday.

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Across the Gem State, there are 273,862 unaffiliated voters, according to the Idaho Secretary of State’s Office.

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At any rate, Biden’s victory was never in doubt. As the incumbent president, Biden had already secured enough delegates to clinch the Democratic Party’s nomination for president.

The presidential caucus is new for Idaho voters this year because the Idaho Legislature seemingly unintentionally eliminated the presidential primary election in Idaho by passing House Bill 138 during the 2023 legislative session. The Idaho Republican Party held its presidential caucus on March 2. The Idaho Republican Party announced that former President Donald J. Trump won Idaho’s GOP caucus

Voters, officials say they prefer a primary election rather than a presidential caucus

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Several Democratic caucus goers and elected officials told the Idaho Capital Sun that they would prefer to vote for president in a primary election instead of a separate caucus. 

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“It seems pretty easy, but I don’t know why we have primaries and a caucus,” voter Sally Davies-Sexton told the Idaho Capital Sun after casting her vote for Biden at the Timberline High School caucus site in Boise on Thursday. “It’s just having two events, and then this is not exactly around the corner.”

Idaho’s primary election, which did not feature presidential candidates, took place earlier in the week on Tuesday.
Voter Mary Ruckh has volunteered as a poll worker and served as a chief elections judge at a polling site during Tuesday’s Idaho primary election. Ruckh rode her bicycle to the Timberline High School caucus site to vote for Biden, but said she would have preferred to vote in a primary election. Primary elections are run by county elections offices and the state, while a caucus is run by the political parties. 

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“A primary – it’s so much more structured, it’s under the egis of government,” Ruckh said. 

Ruckh did say this year’s Democratic presidential caucus was a major  improvement over the most recent Democratic caucus in 2016, which was marred by long lines that many voters endured for hours

Idaho House Minority Leader Ilana Rubel, D-Boise, told the Sun on Thursday that the Idaho Legislature needs to reinstate a presidential primary. 

Rep. Ilana Rubel, a Democrat, represents legislative district 18.
House Minority Leader Ilana Rubel, D-Boise, represents legislative district 18 in the Idaho House.

“We very much wanted a primary, because we were really concerned about the limitations on a caucus and whether that would restrict full participation,” Rubel said. 

“I certainly hope before the next presidential race that we are able to restore a primary,” Rubel added.

Idaho Democratic Party rules allowed voters who will turn 18 years old by the Nov. 5 general election to register to vote and vote in Thursday’s presidential caucus. 

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Kennedy Fletcher, a 17-year-old first-time voter, received a round of applause from Democratic volunteers and other voters when she turned in her ballot Thursday night at Timberline High School. Fletcher told the Sun she is supporting Biden because of the clear differences between him and Trump. 

“I like getting involved politically. I know who I am going to vote for and everything, and I am really excited to vote in the actual presidential election,” Fletcher said. 

Assistant House Minority Leader Lauren Necochea, D-Boise
Assistant House Minority Leader Lauren Necochea, D-Boise. (Courtesy of the Idaho Legislature)

Idaho Democratic Party Chair Lauren Necochea, who is also the outgoing House assistant minority leader, said she wasn’t surprised to see Biden perform strongly in Thursday’s caucus. Necochea said the party will unify strongly behind Biden heading into the Nov. 5 Election Day. 

“President Biden is the only person who has beaten President Trump in a presidential election,” Necochea said. 

Idaho Democrats allowed absentee voting, media coverage

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While the Idaho Republican Party’s March 2 caucus required voters to participate only in person, the Idaho Democratic Party allowed voters request and mail in an absentee ballot if they were unable to attend due to military or religious service, work, disability, illness, child care obligations or the inability to travel.

The Idaho Democratic Party also allowed news reporters to observe the caucus and interview voters. The Idaho Republican Party did not allow news reporters who are not affiliated with the Republican Party to observe its caucus.



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Biden is poised to pick up more delegates in Idaho's Democratic caucuses – Local News 8

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Biden is poised to pick up more delegates in Idaho's Democratic caucuses – Local News 8


BOISE, Idaho (AP) — Idaho Democrats will caucus across the state Thursday to select their nominee for the White House, giving President Joe Biden more delegates after he already clinched his party’s 2024 nomination.

Caucusgoers also will elect delegates pledged to the nominee for the state convention, which will be held on June 22.

The caucus will run from 5 p.m. to 8 p.m. local time — the state is divided between the Pacific and Mountain time zones — and will be structured a bit differently than previous Democratic caucuses. Instead of listening to speeches and moving to various parts of the room to show their support for a candidate, voters will be given ballots to fill out their choices.

Only registered Democrats and unaffiliated voters can participate in the Democratic caucus. Unaffiliated voters must first sign a pledge saying that they are participating as Democrats and that they have not participated in any other presidential nomination contest this year. Voters who are 17 years old are allowed to caucus as long as they will turn 18 before the general election on Nov. 5.

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That’s different from Idaho’s Republican caucus, held earlier this year: The Republican caucus allowed only registered Republicans to vote, and they had to be at least 18 at the time of the caucus. Former President Donald Trump won all of Idaho’s 32 GOP delegates at the March 2 event.

The presidential caucus winner will face a steep hill to climb for Idaho’s general election. The Republican presidential candidate has won the deep-red state in every election since 1968.

Democrats in Idaho utilized caucuses for years but switched the presidential contest to a primary for 2020. Biden won with about 49% of the vote, compared with roughly 42% that went to U.S. Sen. Bernie Sanders of Vermont.

Both the Republican and the Democratic parties had to caucus this year, however, after state lawmakers inadvertently scrapped the state’s primaries during the 2023 legislative session. The error happened when lawmakers were trying to change the date of the state’s primary from March to May — but the new date wasn’t included in the bill.

By next year, Idaho’s closed presidential contests could become a thing of the past. A voter initiative that would open the state primaries and switch the state to a ranked-choice voting system is expected to be on the general election ballot this fall.

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