FIRE Proposes Model Intellectual Freedom Protection Act to Restrict Compulsory DEI Statements in Public Colleges

Here's the text of the proposal:

WHEREAS in 1957's Sweezy v. New Hampshire, the Supreme Court of the United States observed that "[t]he essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. . . . Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die."; and

WHEREAS ten years later in Keyishian v. Board of Regents, the Supreme Court further declared that academic freedom "is a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom."; and

WHEREAS in Healy v. James, the Supreme Court stated that "the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, 'the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.'"; and

WHEREAS in West Virginia State Board of Education v. Barnette, the Supreme Court held that the First Amendment prohibits the government from compelling an individual to engage in speech, proclaiming that "if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."; and

WHEREAS many colleges and universities require or invite current and/or prospective faculty to demonstrate their commitment to diversity, equity, and inclusion (DEI), often through a written statement that factors into hiring, reappointment, evaluation, promotion, or tenure decisions; and

WHEREAS vague or ideologically motivated DEI statement policies can too easily function as litmus tests for adherence to prevailing ideological views on DEI, penalize faculty or applicants for holding dissenting opinions on matters of public concern, and, as the Supreme Court warned against in Keyishian, "cast a pall of orthodoxy" over our public college and university campuses; and

WHEREAS a survey by the American Association of University Professors of hundreds of colleges and universities found that more than one-fifth of higher education institutions include DEI criteria in tenure standards, and of the institutions that do not include tenure standards, nearly half indicated they are considering adding such criteria in the future; and

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

WHEREAS according to data presented at an academic conference in 2022 at the University of Southern California, a majority of tenured/tenure-track faculty members surveyed in a study 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; and

WHEREAS according to a forthcoming FIRE survey, faculty are split evenly on whether DEI statements are a justifiable requirement for a university job (50%) or are an ideological litmus test that violates academic freedom (50%), and three-in-four liberal faculty support mandatory diversity statements while 90% of conservative faculty and 56% of moderate faculty see them as political litmus tests; and

WHEREAS the First Amendment to the United States Constitution prohibits public universities from compelling faculty to assent to specific ideological views;

Now, therefore, the State of ____ 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.

[Alternatives:

[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.

[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]

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.

Disclosure: I was engaged by FIRE to consult briefly on one portion of this project. Note that this does not endorse laws that limit the teaching of certain materials in class ("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"), and indeed FIRE has successfully challenged Florida's law restricting such teaching.

Comments

[santamonica811]

Years ago (decades ago, actually), before I was born; my dad was offered a tenure-track position at U. of Michigan, as a professor in the philosophy dept. He turned down the offer, as the job required a loyalty oath. My dad, on principle, refused.

In other words: different decade, same story. Everything old is new again. What goes around comes around. Same as it ever was. (I'm running out of clichés)

[Dr. Ed 2]

That was common in the 1950s and early 1960s -- even in K-12.

[Krayt]

Meet the new boss. Same as the old boss.

[Ed Grinberg]

“No, no, no!”, these lying fucks will tell you, “DEI statements / initiatives are nothing like loyalty oaths! There’s no ideological component at all!”

[Your Public Name Here]

Loyalty to whom/what?

[Brett Bellmore]

"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."

DIE is a part of every academic field, didn't you know that?

[Longtobefree]

Actually, I know that DIE is not a part of any academic field.
It is fascist brainwashing.

[Brett Bellmore]

Sarcasm: That's the line they'll take when they break this law.

[Sarcastr0]

DEI is an academic field. Like many academic fields, it is also a practice, though operates pretty differently.

But of course you are being silly - "subject-matter expertise in their given academic field" will put the kibosh on your theory there.

[Brett Bellmore]

We'll see. I don't expect the DIE departments to just fold up their tents and walk away. I expect them to make a major effort to circumvent any laws enacted on this model.

[Sarcastr0]

Luckily, this is hardly the only thing DEI departments do; it's just the only thing the right cares to talk about right now.

[Bob from Ohio]

Useless.

[Lee Moore]

As you say.

A law is only necessary because the University itself will not clean its own stables. So this :

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.

is absolutely pathetic and pointless.

The governing body of the university, or individual members thereof, plus senior executive management, (aka "those in charge") need to be readily dismissible if their institution is successfully sued. It should be made explicit that it is their responsibility to deliver the required protection. So whatever protection or tenure or term those in charge have, has to be nixable if their institution loses a lawsuit along these lines. Without compensation. Maybe the Governor alone, maybe by the State Legislature alone. Maybe by some commissioner appointed by the Governor. Whatever.

The governing body needs to have some skin in the game. The law needs to have teeth rather than mere gums. There need to be actual consequences for those that are responsible.

[mydisplayname]

Notwithstanding the currently successful challenge to the Florida statute, I would vote for this proposal only with the following three modifications. First, in Section B, strike "hiring, reappointment, or promotion to a faculty member." Second, in Section D, strike "to limit or restrict the academic freedom of faculty." Third, strike each clause which begins with "whereas."

My prime concern is the differentiation of one segment of the public employee population -- "faculty" -- from all others. "Faculty," as they like to call themselves, are entitled to rights equal to those enjoyed by other public employee: I'm not sure that the teaching and guiding abilities of a public employee coach, counselor, or social worker (for examples) should be subordinate to the teaching and guiding abilities of a public employee who self-professes expertise in economics or physics. British philosopher and faculty member Houston Stewart Chamberlain was no hero.

To be sure, "faculty" consider themselves different than others just as believers in eugenics considered themselves different from others; however, such belief is not factual and certainly does not merit creation of a caste system. As an experiment, substitute "Aryan" for each occurrence of "faculty." I repeat that Houston Stewart Chamberlain was no hero.

[TwelveInchPianist]

[Randal]

1. Universities want good teachers, and part of being a good teacher is being able to teach in an inclusive way to a diverse student body. That doesn’t mean the teacher has to believe it, they just have to do the job. This proposal doesn’t do enough to distinguish litmus tests for particular beliefs (bad) from job criteria for effective teaching (good).

2. Sometimes, you want a litmus test for particular beliefs. This law would require hiring avowed racists, pro-pedophilia advocates, holocaust deniers, etc. etc. It’s written to apply to all “viewpoints,” presumably to give it the veneer of being “viewpoint-neutral,” but that doesn’t work. It needs to be narrowed to the particular viewpoints it wants to favor. Yes, that will cause problems of its own.

3. Since it’ll have to exclude private schools, it’ll encourage a dichotomy where good teachers go to private schools and bad, racist teachers go to public schools. I get that undermining public schools is probably a plus for this lot, but… probably not what states really want to do.

[Brett Bellmore]

"First, in Section B, strike “hiring, reappointment, or promotion to a 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."

First, you should have struck starting with "or". But that's a minor quibble. The major objection is that, rather than placing faculty on the same level as students, your proposed alteration leaves them altogether unprotected.

"Second, in Section D, strike “to limit or restrict the academic freedom of faculty.”"

"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."

Same minor quibble, albeit for a trailing, not leading "or". I may not have a major objection to this edit, let me think about it.

"Third, strike each clause which begins with “whereas.”"

All these clauses are, for the most part, factual findings. Which of them do you think objectively wrong?

[mydisplayname]

The omission of “or” was accidental but the omission of special protection for “faculty” was not. Regarding the “whereas” clauses, they are dubious factual findings (“fact” is not based on court opinions) and, regardless, have no purpose in statute: the statute says what it says regardless of why it is said.

Again, “faculty” is not a caste and, even if we wish to create such a caste, “faculty” are not necessarily a wise group worthy of praise: borrowing from the preface to a book on Houston Stewart Chamberlain, there was never a beautiful, bucolic England wherein the population lived happily in harmony with nature on land overseen by a benevolent, cultured elite.

Also, when considering “faculty” it seems wise to underscore statutory requirement-to-listen, albeit indirect. In particular, some statutes require students to listen to the views of faculty before such students are permitted to obtain required professional certifications.

For example, in the (pre- Loving v. Virginia) mid- to late-1960s, medical students were required to listen to faculty who professed the [obviously false] “fact” that marriage between a black male and white female was likely to produce children whose hearts were too large for their chests. [No kidding: a popular university textbook of that era includes a whole chapter on this “fact”… and the author is a still-living professor emeritus!] Similarly, many students are today required to listen to pronouncements regarding diversity, inclusion, and equity (DIE) as a pre-requisite for licensure.

Yes, government can express its views; however, some trade unions (in particular, the American Association of University Professors) of government employees have a habit of requiring others to listen to the views of its membership. Sadly, we could have prevented the holocaust had we restrained “learned faculty” and refrained from imposing the views of otherwise powerless and easily-ignored labor unions such as the AAUP.

[mydisplayname]

Under the "B" and "D" as written, a law professor (for example) could issue a statement supporting the annihilation of all Jews (for example) and supporting the institution of a government in which only people like himself have any role and could thereafter train students to cunningly misinterpret and subvert our Constitution... and the public taxpayers would have no reason to deny employment or to curtail such [mis]use of taxpayer resources.

Such a situation arose immediately prior to the founding of the University of Virginia and even Jefferson was forced to agree that not all faculty are suited to participation in higher education funded as part of a republic such as ours.

We allow faculty of public institutions to develop their own curricula... but we are not required to do so. In short, it seems unwise to limit taxpayer rights in favor of "faculty" rights.

[Dr. Ed 2]

it seems unwise to limit taxpayer rights in favor of “faculty” rights

I'll go further: IF the taxpayer is to pay, the taxpayer gets to pick what is taught.

[jdgalt1]

I suggest that B, at least, be amended so that persons who have demonstrated biased intentions can be denied consideration for any job which carries with it the power to hire and fire other employees, or to admit or expel students.

[Rev. Arthur L. Kirkland]

If there is anything a white, male, racial slur-hurling, bigot-hugging, stale, movement conservative blog can't abide, it is inclusiveness, modernity, diversity, equity, and progress.

The Conspiracy should invite Prof. Renee Lettow Lerner to elaborate on her whining about how modern, mainstream law students don't want to befriend their bigoted conservative classmates; about how conservative views (gay-bashing, limitless special privilege for superstition, etc.) are dismissed and ridiculed at strong law schools; and about how something must be done about all of this informal peer pressure afflicting right-wing students!

[Seamus]

So you're saying that loyalty oaths are OK, as long as they require you to swear loyalty to (what you regard as) inclusiveness, modernity, diversity, equity, and progress. Got it.

[Rev. Arthur L. Kirkland]

Some backward states might adopt this, accelerating the sifting that increasingly separates America into (1) advanced, reasoning, diverse, successful, liberal-libertarian states and (2) ignorant, superstitious, bigoted, parasitic, shambling, conservative states.

[Kleppe]

Rev Artie must immediately forswear consuming all food products from the "parasitic" conservative states. I wonder how long he will last without the benefit of the "parasites"

[Rev. Arthur L. Kirkland]

What's wrong with purchasing goods and services? Successful Americans in modern, educated, productive communities can easily afford to hire vendors to operate at great scale with respect to food production. Those vendors can hire menial labor where and when needed.

[Dr. Ed 2]

https://www.msn.com/en-us/news/other/california-exodus-continues-state-s-population-dwindles-by-500-000-in-two-years/ar-AA17zWQK

[Rev. Arthur L. Kirkland]

A number of people couldn't afford things they wanted during the pandemic, perhaps including the luxury of residing in California.

[Krayt]

I know, I know. Your rightness is so certain it shall be The Thousand Year Rightness, and all shall be brought to a knee or punished by government.

[Dr. Ed 2]

While half a million people flee California.
https://www.msn.com/en-us/news/other/california-exodus-continues-state-s-population-dwindles-by-500-000-in-two-years/ar-AA17zWQK

[dwshelf]

Too long by a factor of ten.

[Eric VonSalzen]

Intellectual freedom is based on a recognition that our opinions are not necessarily the truth, so people who disagree with us should be free to express their views, which -- HOLY SMOKES might just be right! We could learn from them. Maybe they'll persuade us .

The "other side" today are those who are convinced that they already know the TRUTH, so no valid purpose would be served by allowing people with different views -- once we called them "Commies" now we call them "Clingers" -- to express their views and try to persuade us. In other words, freedom depends on a certain amount of humility -- "I may not know everything" -- and a certain amount of patience, which is hard to find in blog comments.

[Ed Grinberg]

"... which is hard to find in blog comments."
I was with you until this point. So it's my lack of patience / humility that's the problem? I would've thought it was that of the people running our universities (and, increasingly, our government).

[Dr. Ed 2]

"or to prevent faculty members from teaching, researching, or writing publications about diversity, equity, inclusion, patriotism, or other topics."

No, they can ONLY teach the curriculum!

For example, if you are supposed to teach Calculus, then you need to be teaching Calculus -- and not social justice, or patriotism, or anything else! That needs to be established....

[Kazinski]

They should probably also limit DEI administrators salary to 4x the median household income for the state, and limit any University Administrators salary to 6x median household income.

[Krayt]

One might think the explosion in employees paid for by student loans, barreling to a crash government will bail out was intentional, that many souls jumping through hoops declaring the Emperor’s Grand Finery so beautiful and glowing, thanks for the salary.

Parasites on parasites, mandated by corruptions who take the votes of the burgeoning neo-parasites, so they can get elected, and their spouses manifest latent mysterious investment savant abilities.

[Krayt]

Sling trillions, make millions, literally ten thosandths of a penny on the dollar. "Worth it!" says the corruption.

[Kazinski]

They should just check professors and potential students libraries for books that promote extremists thought.

According to The British governments Prevent program ‘Research Information and Communications Unit’ (RICU) reading certain books is a sign of potential radicalization:
"RICU warns that radicalisation could occur from books by authors including C.S. Lewis, J.R.R. Tolkien, Aldous Huxley and Joseph Conrad. I kid you not, though it seems that all satire is dead, but the list of suspect books also includes 1984 by George Orwell."

Watching shows like 'Great British Railway Journeys', should also be considered a red flag.

https://www.spectator.co.uk/article/can-you-really-be-radicalised-by-great-british-railway-journeys/

[Jerry B.]

So L. Neil Smith and Robert Heinlein would put Americans on the "Do not hire" list.

[Old Smokin' Egg]

In paragraph J, alternative B, it should be "lesser", not "lessor". Prof. Volokh, could you bring this to FIRE's attention?

[Dr. Ed 2]

I think you misunderstand what Bloom meant.