The SAVE Act is not about ID

I get so tired of folks eliding the difference between requiring an ID to vote vs. requiring a birth certificate or passport to register to vote.

The federal SAVE Act (Safeguard American Voter Eligibility Act) is a proposed law focused on voter registration and election administration. Its central provision is requiring documentary proof of U.S. citizenship to register (or re-register) to vote in federal elections, along with related verification and enforcement mechanisms.

Proponents argue that all the SAVE act does is require identification to vote just like identification to cash a check or see an R rated movie.

The analogy is inapt. One is about proving who you are at the time of the transaction, the other is about establishing whether you have the right to participate at all in our democracy, that is, whether you can exercise a fundamental right.

It’s the difference between being asked to verify your identity at the time of a transaction with readily available documents we all have, and conditioning access to a fundamental right on producing particular records for approval in advance... records that are not readily available and can be costly in time and money to procure.

The barrier to participation imposed by the proposed SAVE Act is especially high if you, like me, are an American citizen born of American citizen parents abroad, or like my husband are one of 5 million people who have a birth certificate issued in Puerto Rico before July 1, 2010, all of which were voided by the Puerto Rican government and require significant investment to replace, or, like me, and many others, are a woman who changed her name when she got married. And, the documents being required aren't free so if you are poor or live on a fixed income, the barrier to participation is also higher for you.

Virginians already have to show ID at the polls to prove that they are who they say they are. Requiring passports or birth certificates as a condition of participation is a different thing altogether. Such a significant burden on a fundamental right should only be imposed based on credible evidence of wide spread fraud. Even the Heritage Foundation data base has no such evidence.

Author's Note:  I wrote this piece before reading this opinion published in August by Inside Higher Education, It’s Been More Than 50 Years Since the AAUPRevised Its Statement on Academic Freedom. Although the author and I are on almost the same page regarding what needs to be done, I believe that the entire academy needs to come together to reclaim acadmic freedom and preserve self-governance just as they did 50 plus years ago.  The 1940 statement wasn't developed by or endorsed by the AAUP alone. And, a 2025 statement shouldn't be either.

It’s Time for Higher Education to Reclaim Academic Freedom

The institutions that defined academic freedom in 1940 must come together again to protect it in 2025.

In 1940, the American Association of University Professors (AAUP) and the Association of American Colleges (AAC, now the AAC&U) met in Washington, D.C., to finalize what became the Statement of Principles on Academic Freedom and Tenure. The Statement was the product of 25 years of organized, principled debate among higher education leaders who understood that universities cannot serve democracy unless they are free to pursue truth without interference.

The Statement became the foundation for faculty contracts and institutional policy nationwide. It defined the balance between individual inquiry and institutional authority. It articulated why tenure exists, not as a lifetime benefit, but as a structural guarantee that knowledge could be pursued and taught without fear of reprisal.

A legacy of self-governance

The lineage of the 1940 Statement begins in 1915, when John Dewey, the first president of the AAUP, appointed the Committee on Academic Freedom and Tenure. They wrote the 1915 Declaration of Principles on Academic Freedom and Tenure. The message was radical for its time: professors were not employees in service to trustees or donors but members of a learned profession, accountable to scholarly standards rather than political or financial pressure.

A decade later, in 1925, the American Council on Education (ACE) convened a Washington conference to translate that vision into a more concise, practical statement. The 1925 Conference Statement on Academic Freedom and Tenure bridged the gap between ideals and governance.

Between 1934 and 1940, the AAUP and the AAC held joint conferences to reconcile the 1915 and 1925 texts. The final 1940 version defined academic freedom in teaching, research, and extramural speech and made tenure its essential safeguard. It was an act of professional self-governance: a declaration that academic freedom was too vital to be left to courts, politicians, or donors.

That independence gave the 1940 Statement its authority. It was not imposed by government or negotiated through litigation. It reflected the conviction that the academy could govern itself according to principles of reason, evidence, and professional duty. It provided the foundation on which the U.S. Supreme Court rested its landmark McCarthy-era decisions protecting academic freedom and prohibiting government-mandated loyalty oaths for professors.

The challenge of 2025

Eighty-five years later, higher education faces a new test of that independence. The Trump Administration’s proposed Compact for Academic Excellence in Higher Education seeks to bind universities to federal conditions in the name of free speech. Beneath the language of “protection,” the Compact redefines academic freedom as compliance—requiring institutions to certify adherence to political criteria for funding eligibility

The danger is the shift in power the Compact implies. If Washington becomes the arbiter of academic freedom, the academy ceases to be self-governing. The lesson of 1940 is that freedom in scholarship depends not on political favor but on professional integrity and shared standards.

That integrity is now under siege from multiple directions. Legislatures attempt to dictate curricula. Donors fund research that reflects ideology more than inquiry. Online harassment campaigns intimidate faculty. University administrators often act instead as risk managers, weighing reputational or financial exposure over principle.

Academic freedom no longer erodes in sudden purges. It dissolves through compliance, silence, and convenience.

The case for a new statement

While the AAC&U and Phi Beta Kappa have issued Higher Education’s Compact with America and ACE and others have opposed the Trump Compact, what is needed is a comprehensive commitment and concerted action by the broadest constituency possible to restore trust in the academy and with the public. The ACE, the AAC&U, and the AAUP should convene a joint conference to draft a 2025 Statement of Principles on Academic Freedom, Tenure, and Public Responsibility inviting participation from the full range of the academy’s institutions and constituencies.

A modern statement must:
1. Reaffirm academic freedom as a professional right grounded in scholarly expertise, not political allegiance.
2. Recommit institutions to the protection of free expression in laboratories, classrooms and on campus within the bounds of evidence and discipline, and without regard to political favor or cause

3. Define tenure as a commitment to integrity and public trust, not job security.

4. Address new threats—digital surveillance, contingent labor, and algorithmic control of speech—that the 1940 authors could not have foreseen.

 

Such a statement would not merely restate old principles. It would reassert that the academy remains capable of governing itself. The legitimacy of higher education depends on that capacity—and on the courage to exercise it.

The architects of the 1940 Statement faced political pressure, financial vulnerability, and deep internal division. Yet they reached agreement because they understood what was at stake: the moral authority of truth. That same responsibility now rests with today’s academic leaders. If ACE, the AAC&U, and the AAUP do not take it up, politicians, donors, and bureaucrats will gladly take it from them.

**Author Bio:**  Claire Guthrie Gastañaga is a former Chief Deputy Attorney General of Virginia responsible for legal services to Virginia colleges, a Fellow in Higher Education Law recognized by the National Association of College and University Attorneys and former interim president of Chatham College (now University).

The Virginia AG is NOT Virginia's "Top Prosecutor" or "Chief Law Enforcement Officer"

Okay, one more time for those in the media or voters who've been compelled to watch too many campaign commercials.

As a matter of law (and fact), the Virginia Attorney General (AG) is neither the “top prosecutor” nor “the chief law enforcement officer” in Virginia.

The Virginia constitution says nothing about the AG’s duties except that they shall be prescribed by law. No where in the Constitution or the Code is the AG characterized as a part of law enforcement, much less, the “chief law enforcement officer.”

As I point out in this blog post (which I wrote first in 2005 and updated in 2024 in anticipation of this election cycle), the Virginia AG has lots of responsibilities. The first is that the AG is an executive branch official who is the “chief executive officer of the Department of Law.” 

The AG is the general counsel for the Commonwealth of Virginia charged with providing all legal services to state agencies in civil matters, and the Commonwealth in all federal matters.  The AG is responsible for protecting the people’s interest in charities. The AG is the consumer counsel, and a quasi-judicial officer when they issue opinions,  In 2020, the AG was given responsibility to investigate and prosecute police misconduct.

Regarding criminal prosecutorial authority, however, the Virginia Code says this: “A. Unless specifically requested by the Governor to do so, the Attorney General shall have no authority to institute or conduct criminal prosecutions in the circuit courts of the Commonwealth except in [certain specified] cases."  ...   “In all other criminal cases in the circuit courts, except where the law provides otherwise, the authority of the Attorney General to appear or participate in the proceedings shall attach when the appellate court receives the record after a notice of appeal has been filed with the clerk of the circuit court noting an appeal to the Court of Appeals or the Supreme Court.”   

So, although the AG does have some prosecutorial authority by statute (e.g., prosecuting the unlicensed practice of law, fraud or theft of state property, some complex computer crimes, some environmental crimes), the Commonwealth’s Attorneys are the constitutional officers who are the state’s primary prosecutors.  

A person cannot be said to be the Commonwealth’s top prosecutor when they have NO constitutional authority to prosecute crimes and only limited prosecutorial authority explicitly given to them by statute. They can't be said to the the Commonwealth's top prosecutor when they have NO oversight of the constitutional officers who are the Commonwealth’s chief prosecutors. They can't be said to be the Commonwealth's "chief law enforcement officer," when, unlike Commonwealth's Attorneys who, are by statute defined as being part of “the department of law enforcement of the county or city in which he is elected or appointed,” the AG has no statutory leadership role or organizational authority over any law enforcement officials.

As a final note, in the past four decades (1986 to 2025), Virginia has had 13 Attorneys General, some elected and some appointed. Six had prosecutorial experience before taking office, seven did not.  For the record, the six with prosecutorial experience before taking office were: Mary Sue Terry (D), Jim Gilmore (R), Richard Cullen (R), Jerry Kilgore (R), Bob McDonnell (R), and Jason Miyares (R). The seven without were: Stephen Rosenthal (I), Mark Earley (R), Randy Beales (R), Judith Jagdmann (R), Bill Mims (R), Ken Cuccinelli (R), and Mark Herring (D).

Regardless of their personal experience, people running for AG often gravitate to calling themselves titles that enable them to capitalize on “tough on crime” polling data.  Nonetheless, I urge Virginians not to fall for this political gamesmanship. Those touting the so-called prosecutorial “qualification” for those who run for the office of Virginia Attorney General are simply making a play to capitalize on polling data rather than a describing the actual experience a candidate needs to serve as the chief executive officer of the "Commonwealth's law firm" with more than 500 employees and a budget of nearly $60 million.