Michigan State University trustee sues, says ethics policy is unconstitutional

Michigan State University Trustee Mike Balow says he has worked behind the scenes for months to get the university’s board to modify its controversial ethics policy, updated last spring to include what some viewed as a loyalty clause amid some trustees publicly questioning university policies.

Balow decided he’s had enough. This week, he filed a federal lawsuit against board Chair Briana Scott and board Secretary Stefan Fletcher, alleging the updated policy is unconstitutional.

The updated policy is viewed by some as silencing elected officials but supporters say it reinforces board member responsibilities. It includes provisions such as one requiring trustees to support and not undermine decisions made by the majority of the board and another requiring trustees to act after board decisions “consistent with our fiduciary duties, including the duty of loyalty.”

“History teaches that self-government breaks down when those in power use governmental authority to silence dissent,” says the lawsuit, filed on Balow’s behalf by the Foundation for Individual Rights and Expression , a national organization fighting for rights of those on and off college campuses.

“Under the board’s new rules, trustees may praise MSU’s leadership all they want, but they face sanctions if they publicly criticize it,” the lawsuit continues. “That is blatant viewpoint discrimination, repugnant to our Constitution and political tradition.”

Scott, the board chair, said MSU’s updated ethics policy contains similar provisions to one enacted for Wayne State University ’s board and state lawmakers are expected to follow the rules of their respective House and Senate chambers, as enforced by the speaker and majority leader.

“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,” Scott said in a statement. “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.”

Balow’s lawsuit is the second filed this month against MSU officials by a board member. Trustee Rema Vassar last week filed a federal lawsuit against MSU President Kevin Guskiewicz and others, alleging racial discrimination .

“The university will respond to the accusations in Trustee Vassar’s lawsuit through the applicable legal process,” MSU spokesperson Amber McCann said.

Balow said that he and Vassar have been shut out of about 20 MSU events where other trustees were invited since they decided not to sign the policy in May. And the events from which they have been excluded go beyond football games, Balow added, from the Mackinac Policy Conference to the president’s State of the University address to a dinner to thank employers who worked to restore power to campus after a major outage.

Even when he tried to address it on a board phone call, he said the response from other trustees was “crickets” and then they moved on.

“We are going to take a deep dive into the constitutionality of the code and we are going to show it is not the right policy for MSU or any university that silences board members,” said Balow. “We are going to make Michigan State a better place.”

This story was originally published by Bridge Michigan and distributed through a partnership with The Associated Press.