by James C. Sherlock
I offer for your consideration the text of a draft Intellectual Freedom Protection Act proposed this morning by the Foundation for Individual Rights and Expression (FIRE).
FIRE is the leading American voice supporting academic freedom, free speech and due process. In doing so they defend democracy itself.
They are what the ACLU was before that organization abandoned the field as an impartial supporter of civil liberties to pick a side.
FIRE defends left and right equally.
I have below eliminated the preamble of the draft law for brevity. Lawyers can find the legal precedents referenced in the preamble here.
Now, therefore, the Commonwealth of Virginia enacts the following:
A. No public institution of higher education shall condition admission or benefits to an applicant for admission, or hiring, reappointment, or promotion to a faculty member, on the applicant’s or faculty member’s pledging allegiance to or making a statement of personal support for or opposition to any political ideology or movement, including a pledge or statement regarding diversity, equity, inclusion, patriotism, or related topics, nor shall any institution request or require any such pledge or statement from an applicant or faculty member.
B. If a public institution of higher education receives a pledge or statement describing a commitment to any particular political ideology or movement, including a pledge or statement regarding diversity, equity, inclusion, patriotism, or related topics, it may not grant or deny admission or benefits to a student, or hiring, reappointment, or promotion to a faculty member, on the basis of the viewpoints expressed in the pledge or statement.
C. Nothing in this Act prohibits an institution from requiring a student, professor, or employee to comply with federal or state law, including anti-discrimination laws, or from taking action against a student, professor, or employee for violations of federal or state law.
D. Nothing in this Act shall be construed to limit or restrict the academic freedom of faculty or to prevent faculty members from teaching, researching, or writing publications about diversity, equity, inclusion, patriotism, or other topics.
E. Nothing in this Act prohibits an institution from considering, in good faith, a candidate’s scholarship, teaching, or subject-matter expertise in their given academic field.
F. Each public institution of higher education in the state shall post and make publicly available all training materials used for students, faculty, and staff, on all matters of nondiscrimination, diversity, equity, inclusion, race, ethnicity, sex, or bias, and all of its policies and guidance on these issues, on its website.
G. A person whose rights were violated through a violation of this act may bring an action against a public institution of higher education, and its agents acting within their official capacities, in a state or federal court of competent jurisdiction to receive declaratory relief or enjoin a violation of this Act. If a court finds a violation of this act, the court shall provide a prevailing plaintiff appropriate equitable remedies, and award damages, reasonable court costs, and attorney’s fees.
H. The Attorney General may file suit to enjoin a policy or practice prohibited by Section A or Section B.
I. If an institution, or any of its employees acting in their official capacities, are found by a court or the institution to have violated this Act, the institution may take disciplinary action against the responsible employees in accordance with the institution’s policies and procedures.
J. In addition to any relief under Sections G and H, the [State Fiscal Officer] shall impose an administrative penalty of $100,000 against a State Education Institution for each violation of this Act. The penalty shall be deposited in the [State Treasury] and shall be allocated to each State Education Institution that is not currently in violation of this Act and has not violated this Act within the preceding two fiscal years.
K. Any action brought pursuant to Section G must be brought within 1 year of the latest date the Act is alleged to have been violated.
L. If any provision of this chapter, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this chapter and the application of its provisions to any other person or circumstance shall not be affected thereby.
FIRE proposes alternative formulations of an enforcement provision for consideration:
Alternative A
In addition to any relief under Sections G and H, the [State Fiscal Officer] shall impose an administrative penalty of $30 per student enrolled at the institution on a full-time basis in the fiscal year preceding the violation, against a State Education Institution for each violation of this Act. The penalty shall be deposited in the [State Treasury] and shall be allocated to each State Education Institution that is not currently in violation of this Act and has not violated this Act within the preceding two fiscal years.
Alternative B
In addition to any relief under Sections G and H, the [State Fiscal Officer] shall impose an administrative penalty of the lessor of $300,000 or 1% of the State Education Institution’s budget during the fiscal year preceding the violation, against a State Education Institution for each violation of this Act. The penalty shall be deposited in the [State Treasury] and shall be allocated to each State Education Institution that is not currently in violation of this Act and has not violated this Act within the preceding two fiscal years.”
Bottom line. This proposed law attempts to further codify the rights and freedoms of Virginia citizens against suppression by government.
It is time to debate how best, or possibly whether, to protect academic freedom and freedom of expression in state-supported institutions.
If anyone has principled support for or opposition to this proposed law, this is an opportunity to consider and state such views and the principles behind them.
For supporters, I urge consideration as applicable of the FIRE student network, the FIRE faculty network, the FIRE alumni network. the FIRE College Administrators Network, and the FIRE K-12 Educators Network.
