Trustees take legal action as controversy over changes to MSU Board Code of Ethics continues

Policy changes intended to tamp down infighting within the Michigan State University Board of Trustees are now drawing legal scrutiny as two of its members have filed complaints in federal court seeking to halt the enforcement of the board’s updated Code of Ethics and Conduct. 

MSU Trustee Mike Balow on Wednesday filed a lawsuit against Board Chair Brianna Scott and Stefan Fletcher, the board’s secretary and chief of staff, arguing that revisions to the Board of Trustees code of conduct unlawfully restrict trustee speech. 

In May, the Board of Trustees voted 5-3 to add provisions barring trustees from divulging confidential information to unauthorized individuals before that information is made public and instructing them to “act ethically and not provide inaccurate, misleading, or false information concerning the university.”

The new provisions also bar trustees from representing their personal opinions as that of the university, and state that trustees will not undermine decisions made by the majority of the board.

After the revisions were approved, trustees were required to sign a statement of acknowledgement, agreeing to follow the code of conduct’s terms. Trustees who did not sign were warned they could face sanctions including public censure, loss of privileges such as complimentary access to university sporting events and removal from any leadership position on the board.

Two trustees refused to sign: Balow and Trustee Rema Vassar. They were later censured as a result.

The Foundation for Individual Rights and Expression, a civil liberties group focused on free speech issues, sent a letter to the university in May raising concerns about the revisions while offering itself as a resource to revise the Code of Ethics and ensure its compliance with the First Amendment. 

The group now represents Balow in his lawsuit against Scott and Fletcher.

“The people of Michigan elected Michael to be a watchdog, not a lapdog,” Greg Greubel, a senior attorney at FIRE said in a statement. “The freedom to voice opposition strengthens the university by encouraging ideas to be challenged and solutions to be worked out.”

According to the complaint filed in the U.S. District Court for the Western District of Michigan, Scott and Fletcher have “cut Balow off from the ceremonial gatherings, conferences, sporting events, and other occasions at which trustees ordinarily interact with students, faculty, alumni, donors, and members of the public” due to his refusal to sign the statement agreeing to the revised code of ethics.

Balow’s attorneys argue that “Each day these restrictions remain in place, Balow loses opportunities to interact with the individuals he was elected to represent.”

“Asking hard questions and demanding honest answers is the only path to solid governance,” Balow said in a statement. “Healthy friction leads to accountability and transparency that boards often talk about, but don’t always deliver. It’s not easy, but it’s necessary.”

Last week, Vassar filed her own lawsuit against Scott, Fletcher, the Board of Trustees, MSU President Kevin Guskiewicz, Vice President for Legal Affairs and General Counsel Brian Quinn, and former trustees Dan Kelly and Dianne Byrum.

Vassar, who was previously investigated for misconduct alongside Trustee Dennis Denno, argued university officials had orchestrated a campaign of intentional discrimination and retaliation against her as the first Black woman to chair the board of trustees. 

As part of the suit, she has requested the board cease enforcing its requirements for trustees to sign a statement of acknowledgment regarding the Code of Ethics.

Amber McCann, a spokesperson for the university, told Michigan Advance the university would address Vassar’s suit through the appropriate legal channels. 

In a statement to Michigan Advance, Scott, who is seeking reelection for another 8-year term, called Balow’s lawsuit “petty and frivolous” and that she looked forward to seeking sanctions.

“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. “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.”