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For Your Consideration: An Intellectual Freedom Protection Act

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sherlockj
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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.

 

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42 responses to “For Your Consideration: An Intellectual Freedom Protection Act”

  1. M. Purdy Avatar
    M. Purdy

    Just gonna leave this right here: https://www.thefire.org/news/university-virginia-president-rightly-defends-students-f-uva-sign-amid-backlash

    1. James C. Sherlock Avatar
      James C. Sherlock

      It makes my point.

      They defend freedom for both sides of the political divide equally.

      FIRE has a less sanguine view of the predations of UVa’s DEI thought police.

      1. M. Purdy Avatar
        M. Purdy

        It also makes my point that this blog selectively chooses when to amplify the thoughts and actions of third parties. You hate left wing speech police, but defend folks like The Razor b/c he’s one of yours.

        1. James C. Sherlock Avatar
          James C. Sherlock

          I have no idea who “The Razor” is. Or whether he or she is “one of mine”.

          The article is about FIRE. Can I assume from your comment that you support the draft law?

          1. M. Purdy Avatar
            M. Purdy

            You don’t know THE RAZOR? He’s only the most (in)famous BOV member in the entire Old Dominion! To answer your question, policywise, the law isn’t bad. As written, I have some misgivings. But generally, I agree that schools shouldn’t be discriminating against viewpoints, assuming of course those viewpoints aren’t inherently destructive of the educational mission.

          2. James C. Sherlock Avatar
            James C. Sherlock

            What are your “as written” misgivings?

            And what viewpoints not recommending illegal acts are “inherently destructive”?

          3. M. Purdy Avatar
            M. Purdy

            “…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.” So this would seem to prevent a public school from denying admission to a student who was a neo-Nazi and pledged to kill Jews and non-whites.

          4. WayneS Avatar
            WayneS

            It is illegal to kill Jews and non-whites.

          5. M. Purdy Avatar
            M. Purdy

            But not to say it.

          6. James C. Sherlock Avatar
            James C. Sherlock

            “Neo-Nazi” is too non-specific a term. It is a characterization. It is what the applicant specifically supports that is the issue.

            If he recommends illegal acts as you suggest, the applicant could be denied in my view.

            But if you are right, the language in the law could be modified.

          7. M. Purdy Avatar
            M. Purdy

            The law actually doesn’t say that he can be denied; it would only apply if what he did was ‘illegal’ and merely stating ‘I want to murder non-whites’ is likely not illegal. The law needs to allow for the school making reasonable decisions to protect students and the educational mission of the school. BTW, there is some case law on this, which is sort of messy, but colleges are allowed to protect their mission.

          8. James McCarthy Avatar
            James McCarthy

            Since the proposed model legislation applies only to public higher educ, all the haters can attend private or religious institutions.

          9. WayneS Avatar
            WayneS

            Your exact words were: “…pledged to kill Jews and non-whites.”

            That is a direct threat, which is illegal.

          10. M. Purdy Avatar
            M. Purdy

            Probably not. He would have to take some sort of action to advance that threat against a specific person or target.

          11. DJRippert Avatar
            DJRippert

            Presumably, “The Razor” is Bert Ellis who brought a box cutter to the door of the student who had the F*** UVa sign posted on her door.

            As I’ve written before, confronting the adult student about her sign was fine. Possessing a box cutter is also fine. However, publicly claiming that the box cutter was to be used to cut down the sign showed a lack of maturity. In a similar vein, some of Ellis’ text messages (that were made public via a FOIA request) also show a lack of maturity.

            Bert Ellis is somewhere in his late sixties. If he hasn’t learned how to behave in a mature manner by now I doubt he ever will.

            My prediction is that Mr. Ellis will continue to put his foot in his mouth embarrassing himself, the Youngkin Administration and the University of Virginia. That is a shame since some of what Bert Ellis believes needs to be heard and considered by UVa.

          12. M. Purdy Avatar
            M. Purdy

            Wow, well said:-).

          13. James C. Sherlock Avatar
            James C. Sherlock

            How about you, DJ? Support the draft law?

    2. WayneS Avatar
      WayneS

      Okay.

  2. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    I think all of what this purported act intends to protect is already protected under the First Amendment. To be guilty of any of the acts proscribed in the proposal, the plaintiff would have to prove that the actions taken by the institution of higher education were “on the basis of….” That is very high bar of proof. Nevertheless, it could lead to nuisance lawsuits filed by applicants claiming they were denied hiring, promotion, tenure, what have you, on the basis of not “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.” If a college or university were to make such a demand, it could be hauled into court on First Amendment grounds and would lose.

    What is the need for this legislation? Has any public institution of higher education engaged in such behavior? Or is this the virtue signaling that many of this blog seem to deplore?

    1. James McCarthy Avatar
      James McCarthy

      I think it was Carl Sagan who said,”Extraordinary claims require extraordinary evidence.”

    2. James C. Sherlock Avatar
      James C. Sherlock

      FIRE investigates and supports victims – left and right – of such discriminatory acts 24/7. They could give you all the examples of the need for the legislation you could handle.

      As you know, finding a state institution guilty of viewpoint discrimination and recovering damages in federal court is a very big leap.

      You must know that applicants for teaching positions at many of our state universities require a statement of historical support of DEI. Go here and see UVa’s requirement for a written statement of support to DEI in hiring. https://eocr.virginia.edu/Contribution-Diversity-HOSC

      “Attach a [insert item], [insert item], and a statement which describes your potential contributions to excellence through diversity, equity, and inclusion in patient care/the workplace/the learning environment.”

      [Faculty] “Candidates should also describe how their courses, research, and/or service have helped, or will help, students to develop intercultural competencies or otherwise advance excellence through diversity, equity, and inclusion within the institution.”

      [Medical] “Please describe how you have and/or would contribute to culturally competent, inclusive, and equitable patient care”.”

      So, Dick, I personally think that thee DEI movement is “coercive progressivism”, which is redundant. If I were to write that on my application, I would be denied entry.

      That is a violation by a state institution of freedom of speech and expression on its face.

      This law would let both individual plaintiffs and the state AG sue in state court under Virginia law.

      1. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        It comes down to my not seeing in diversity, equity, and inclusion the boogie man that you and JAB see.

        I don’t approve of the development of large bureaucracies devoted to DEI. I think the resources could be devoted to much better use, just as I think the resources devoted to other higher ed bureaucracies could be devoted to better uses

        However, I certainly would not want the Commonwealth’s colleges and universities hiring faculty who were not supportive of diversity, equity (in the traditional meaning, not “equal outcomes” as some have characterized it), and inclusiveness (including Republican and conservative perspectives).

        I think Jim McCarthy has gotten it right–you are just looking for a way to outlaw promotion of diversity, equity, and inclusiveness.

        Be patient, this is one of those fads that will fade away.

        1. James McCarthy Avatar
          James McCarthy

          I would add that the elimination of DEI is a measure to insure pure merit as the criterion for all including those who – K to college- need help to succeed. This is not, as the anti-DEI cabal would have it, creating equal outcomes, only equal opportunity. No individual or newcomer group succeeded without assistance. Such is the essence of the terms common wealth and social contract. IMO, that is American exceptionalism writ large.

          1. Dick Hall-Sizemore Avatar
            Dick Hall-Sizemore

            Another thought occurred to me. If we eliminated equity and demanded pure equality, we would eliminate financial aid. After all, everyone would be equal, subject to the same costs to attend college.

          2. LarrytheG Avatar
            LarrytheG

            We’d eliminate all kinds of “help” that some students need from eye/hearing testing, learning disabilities, special ed, even gifted programs.

          3. James McCarthy Avatar
            James McCarthy

            To some radical, woke conservatives that is the ideal of American exceptionalism – except it ain’t how it works in real life.

          4. James McCarthy Avatar
            James McCarthy

            Yup!! All would be required to pull on their own bootstraps to succeed. No newcomer immigrant – ever – received help. The pure equality criterion (Puritan) functioned to insure a permanent class of poor folk or position at the bottom of the totem pole. The US history of poor laws is instructive in this regard. Kinda like an economic replacement fear.

      2. James McCarthy Avatar
        James McCarthy

        That is your opinion, as you believe. AG legal actions of course would be defended by AG counsel appointments at public institutions. Legislative action to limit DEI May rise to “retrogressive depression” of evolving values.

  3. James A. Bacon Avatar
    James A. Bacon

    A law like this is desperately needed in Virginia. I’m disappointed that someone hasn’t already submitted a bill along this lines.

    As for “the Razor” mentioned in the comments… Purdy continues to distort reality. Bert Ellis did not object to Hira Azher expressing her views about UVa. She was free to vent her hatred to toward the institution in other venues. He objected to her expressing her views with profane language…. in a highly visible format on the door of her Lawn room… in a UNESCO World Heritage Site…. in violation of her lease. If she had posted the exact same poster on, say, a dormitory door, he would have had no problem with it.

    I expect that if someone had posted “FUCK BLM” on a room on the door, Purdy would have had felt a very similar desire to take the sign down. And if someone had excised such a sign with a razor blade, I am quite certain that Purdy would defend the act as righteous civil disobedience.

    1. James McCarthy Avatar
      James McCarthy

      Such certitude based upon FIRE’s assumptions and speculation is hardly the stuff of necessary public policy or law. You may credit FIRE’s opinion. Be careful what you are wishing for.

  4. Carter Melton Avatar
    Carter Melton

    I think whether this document becomes law or not….appropriately
    amended, it would make an excellent policy for a college or university

    1. James C. Sherlock Avatar
      James C. Sherlock

      It needs to be law. Otherwise, there is no penalty for violation.

    2. James McCarthy Avatar
      James McCarthy

      Perhaps, appropriately amended. Note it is not presented to apply to private higher education.

  5. James McCarthy Avatar
    James McCarthy

    Sherlock’s and FIRE’s model legislation is intended to preserve and protect academic freedom in higher education, particularly in public higher education. Their opinions are based upon their interpretation of several SCOTUS decisions and prospective data concluding that DEI is an orthodoxy or ideology intruding upon academic freedom. Sherlock and FIRE seek to encourage state legislatures to define DEI as ideology. Their brief is based upon the a set of WHEREAS statements summarized as follows;

    –a survey by the American Enterprise Institute of academic job postings found that nearly 20 percent required DEI statements;

    –a 2020 survey…(found)…a majority of tenured/track faculty surveyed…indicated that they disfavored a candidate for an academic position when the applicant’s DEI statement didn’t reference race/ethnicity and gender diversity, reflecting the fact that DEI statements are used to favor candidates who endorse prevailing campus ideological orthodoxies;

    –according to a forthcoming FIRE survey, faculty are evenly split on whether DEI statements are a justifiable requirement for a university job.

    This latter WHEREAS offers that faculty are evenly split at 50% whether DEI statements are an ideological litmus test that violates academic freedom. 75% of liberal faculty support mandatory DEI statements; 90% of conservative faculty and 56% of moderate faculty see DEI as “political litmus tests.”

    Gotta read the fine print to appreciate the proposed model legislation. Sherlock and FIRE propose to require the GA to determine that DEI is an ideological litmus test endangering academic freedom – as a matter of public policy and law to terminate the “predations of UVa’s DEI thought police.” It must be law, it is argued, so that there is a penalty for violation. The FIRE penalty recommendation is “$300,000 or 1% ” of the institution’s budget. That’s a bounty the DEI hawks would pursue in their mission to eliminate DEI.

    1. James C. Sherlock Avatar
      James C. Sherlock

      I personally don’t care what faculty think.

      See https://eocr.virginia.edu/Contribution-Diversity-HOSC

      I see that as hard evidence – the extraordinary evidence of which Sagan spoke, of viewpoint discrimination in hiring at a state institution.

      Please comment on your interpretation.

    2. James C. Sherlock Avatar
      James C. Sherlock

      I personally don’t care what faculty think.

      See https://eocr.virginia.edu/Contribution-Diversity-HOSC

      I see that as hard evidence – the extraordinary evidence of which Sagan spoke, of viewpoint discrimination in hiring at a state institution.

      Please comment on your interpretation.

      1. WayneS Avatar
        WayneS

        I personally don’t care what faculty think.

        And neither does the 1st Amendment.

        1. James McCarthy Avatar
          James McCarthy

          Such cavalier dismissal of those who historically promoted academic freedom. Power to the legislature.

          1. WayneS Avatar
            WayneS

            I’m sorry. I forgot to ask for your permission before disagreeing with UVA college professors. I’ll try to do better next time.

          2. James McCarthy Avatar
            James McCarthy

            You failed to disagree. Dismissal is not an equivalent. You don’t have to care what the UVA faculty think or any faculty anywhere.

          3. Lefty665 Avatar
            Lefty665

            The problem being that faculty has largely abandoned it’s historical role in promoting academic freedom.

            Your attempt to conflate historic virtue with present cravenness qualifies as another Jim McCarthy silly walk. Congrats.

      2. James McCarthy Avatar
        James McCarthy

        I had 20 years experience in higher educ admin and recall clearly that the core of the essence of academic freedom is faculty. See its history at NYC’s public colleges. You and FIRE can dismiss that- or as FIRE presents not have a commanding faculty mandate to eliminate DEI. Nor is hard evidence extraordinary. I offered no interpretation of your screed, only quotes of material from FIRE for others to evaluate your and FIRE’s proposal.

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