Balow sued Board Chair Briana Scott and Secretary Stefan Fletcher, arguing that the policy improperly restricts trustees from publicly criticizing university leadership and decisions.
The policy requires trustees to support board decisions made by a majority and prohibits them from undermining those decisions. It also directs members to act consistently with their fiduciary duties, including a duty of loyalty.
Balow said he spent months trying to persuade the board to change the policy before turning to the courts. He filed the lawsuit with assistance from the Foundation for Individual Rights and Expression, a national organization that advocates for free speech rights.
“History teaches that self-government breaks down when those in power use governmental authority to silence dissent,” the lawsuit states, according to Bridge Michigan.
The lawsuit argues that the policy amounts to viewpoint discrimination by allowing trustees to praise university leadership while exposing those who criticize it to potential sanctions.
Scott defended the policy, telling Bridge Michigan that it establishes standards for effective governance rather than restricting speech. She said similar provisions exist in the ethics policy governing Wayne State University's board.
“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,” Scott said.
The lawsuit is the second filed this month against Michigan State officials by a trustee. Trustee Rema Vassar last week sued MSU President Kevin Guskiewicz and others, alleging racial discrimination. The university said it would respond through the legal process.
Balow told Bridge Michigan that he and Vassar have been excluded from about 20 university events since they declined to sign the ethics policy in May. Those events included the Mackinac Policy Conference, the president's State of the University address and a dinner honoring employers who helped restore campus power after a major outage.
Balow said his efforts to raise concerns with fellow trustees went unanswered.
“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,” he told Bridge Michigan. “We are going to make Michigan State a better place.”
