Revision: Dec. 14, 2015, midnight
\t \t\tHB 1431 - AS INTRODUCED
2016 SESSION
\t16-2127
\t04/05
HOUSE BILL\t1431
AN ACT\trelative to academic freedom and whistleblower protection.
SPONSORS:\tRep. Edelblut, Hills. 38; Rep. L. Turcotte, Straf. 4
COMMITTEE:\tEducation
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ANALYSIS
\tThis bill establishes academic freedom and whistleblower protection for faculty members of the university system of New Hampshire and the community college system of New Hampshire.
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Explanation:\tMatter added to current law appears in bold italics.
\t\tMatter removed from current law appears [in brackets and struckthrough.]
\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
\t16-2127
\t04/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Sixteen
AN ACT\trelative to academic freedom and whistleblower protection.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t1 New Subdivision; Academic Freedom and Whistleblower Protection. Amend RSA 187-A by inserting after section 42 the following new subdivision:
Academic Freedom and Whistleblower Protection
\t187-A:43 Definition. The term "faculty member" refers to any person, whether or not they are compensated by the university system of New Hampshire, who is tasked with providing scholarship, academic research, or teaching. For purposes of this subdivision, the term "faculty member" shall include tenured and non-tenured professors, adjunct professors, visiting professors, lecturers, graduate student instructors, and those in comparable positions, however titled. For purposes of this subdivision, the term "faculty member" shall not include persons whose primary responsibilities are administrative or managerial.
\t187-A:44 Academic Freedom and Whistleblower Protection.
\t\tI. No institution of the university system of New Hampshire shall take adverse personnel action, or maintain a policy that allows it to take adverse personnel action, against a faculty member in retaliation for:
\t\t\t(a) Expression related to scholarship, academic research, or teaching, except as provided in paragraph II; or
\t\t\t(b) Disclosure, whether formal or informal, of information the faculty member reasonably believes evidences:
\t\t\t\t(1) A violation of any law, rule, or regulation; or
\t\t\t\t(2) Gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health or safety.
\t\tII. It shall not be unlawful under this subdivision for an institution of the university system of New Hampshire to take adverse personnel action or to maintain a policy that allows it to take lawful adverse personnel action against a faculty member for classroom expression that:
\t\t\t(a) Is not reasonably germane to the subject matter of the class, broadly construed; and
\t\t\t(b) Comprises a substantial portion of classroom instruction.
\t\tIII. Any person whose rights under this subdivision have been violated may bring an action in any state court of competent jurisdiction. In an action brought under this subdivision, if the court finds that expression protected under this subdivision was a significant motivating factor behind the institution's decision to take adverse personnel action, the court shall award the aggrieved party compensatory damages, reasonable court costs, and attorney's fees, including expert fees, and any other relief in equity or law as deemed appropriate, unless the institution can demonstrate that it would have taken the same personnel action in absence of the protected expression.
\t\tIV. In a suit against the state for a violation of this subdivision, the legal and equitable remedies available shall, to the extent practicable, be the same as those remedies available for such a violation in a suit against any other public or private entity other than the state.
\t\tV. An aggrieved party shall bring suit for a violation of this subdivision no later than one year after the day the cause of action accrues. For purposes of calculating the one-year limitation period, the cause of action shall be deemed accrued on the date that the aggrieved party receives final notice of discipline from the institution or the date in which the act of retaliation occurred, whichever is later.
\t187-A:45 Exemption. This subdivision shall not apply to a privately operated postsecondary institution in this state or to any postsecondary institution whose primary purpose is the training of individuals for the military services of the United States, or the merchant marines.
\t2 New Subdivision; Academic Freedom and Whistleblower Protection. Amend RSA 188-F by inserting after section 67 the following new subdivision:
Academic Freedom and Whistleblower Protection
\t188-F:68 Academic Freedom and Whistleblower Protection. The term "faculty member" refers to any person, whether or not they are compensated by the community college system of New Hampshire, who is tasked with providing scholarship, academic research, or teaching. For purposes of this subdivision, the term "faculty member" shall include tenured and non-tenured professors, adjunct professors, visiting professors, lecturers, graduate student instructors, and those in comparable positions, however titled. For purposes of this subdivision, the term "faculty member" shall not include persons whose primary responsibilities are administrative or managerial.
\t188-F:69 Academic Freedom and Whistleblower Protection.
\t\tI. No institution of the community college system of New Hampshire shall take adverse personnel action, or maintain a policy that allows it to take adverse personnel action, against a faculty member in retaliation for:
\t\t\t(a) Expression related to scholarship, academic research, or teaching, except as provided in paragraph II; or
\t\t\t(b) Disclosure, whether formal or informal, of information the faculty member reasonably believes evidences:
\t\t\t\t(1) A violation of any law, rule, or regulation; or
\t\t\t\t(2) Gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health or safety.
\t\tII. It shall not be unlawful under this subdivision for an institution of the community college system of New Hampshire to take adverse personnel action or to maintain a policy that allows it to take lawful adverse personnel action against a faculty member for classroom expression that:
\t\t\t(a) Is not reasonably germane to the subject matter of the class, broadly construed; and
\t\t\t(b) Comprises a substantial portion of classroom instruction.
\t\tIII. Any person whose rights under this subdivision have been violated may bring an action in any state court of competent jurisdiction. In an action brought under this subdivision, if the court finds that expression protected under this subdivision was a significant motivating factor behind the institution's decision to take adverse personnel action, the court shall award the aggrieved party compensatory damages, reasonable court costs, and attorney's fees, including expert fees, and any other relief in equity or law as deemed appropriate, unless the institution can demonstrate that it would have taken the same personnel action in absence of the protected expression.
\t\tIV. In a suit against the state for a violation of this subdivision, the legal and equitable remedies available shall, to the extent practicable, be the same as those remedies available for such a violation in a suit against any other public or private entity other than the state.
\t\tV. An aggrieved party shall bring suit for a violation of this subdivision no later than one year after the day the cause of action accrues. For purposes of calculating the one-year limitation period, the cause of action shall be deemed accrued on the date that the aggrieved party receives final notice of discipline from the institution or the date in which the act of retaliation occurred, whichever is later.
\t188-F:70 Exemption. This subdivision shall not apply to a privately operated postsecondary institution in this state or to any postsecondary institution whose primary purpose is the training of individuals for the military services of the United States, or the merchant marines.
\t3 Effective Date. This act shall take effect 60 days after its passage.