Free Speech in Higher Education Act
| Model Bill Info | |
|---|---|
| Bill Title | Free Speech in Higher Education Act |
| Date Introduced | November 30, 2022 |
| Type | Model Policy |
| Status | Draft |
| Task Forces | Education and Workforce Development |
Free Speech in Higher Education Act
WHEREAS, public universities and community colleges have an obligation to uphold students’ First Amendment rights of free speech;
WHEREAS, the opportunity for disagreements, differences of opinion, and even heated arguments, unless threatening or otherwise unlawful, are vital to a climate of inquiry;
WHEREAS, excessive or unreasonable security fees, student-on-student harassment, and “bias reporting systems,” threaten to chill student speech; and
WHEREAS it is the intent of the state legislature to protect free speech and academic inquiry at public institutions of higher education by prohibiting “bias reporting systems,” student-on-student harassment, and excessive or unreasonable security fees;
Now therefore, be it resolved:
SECTION 1: Definitions
A) “Benefit” means the recognition, registration, use of facilities, use of channels of communication, and funding sources that are otherwise available to other students or student organizations at the public institution of higher education;
B) “Bias reporting system” means formal or explicit processes for, or solicitation of, bias incidents from students, faculty, staff, or the community concerning “offensive” or “unwanted” speech, including satire or speech labeled as a “microaggression,” regardless of whether such speech occurred on or off campus;
C) “Campus community member” includes students, student organizations, administrators, faculty, and staff at the institution of higher education and their invited guests.
D) “Protected expressive activity” includes, but is not limited to, any lawful verbal, written, audio-visual, or electronic means by which individuals may communicate ideas to one another, whether such communication originates on or off the public institution of higher education’s campus. The term includes, but is not limited to, all forms of peaceful assembly, protests, speeches and guest speakers, distribution of literature, carrying signs, and circulating petitions.
E) “Public institution of higher education” means any public technical institute, public junior college, public senior college or university, law school, medical or dental school, public state college, or other agency of higher education as defined in [insert cross-sectional reference].
F) “Quid pro quo sexual harassment” means explicitly or implicitly conditioning a student’s participation in an education program or activity or basing an educational decision on the student’s submission to unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature.
G) “Student” means any person who is enrolled on a full-time or part-time basis in a public institution of higher education.
H) “Student organization” means an officially recognized group at a particular institution of higher education, or a group seeking official recognition, comprised of admitted students that receive, or are seeking to receive, benefits through the institution of higher education as defined in this Act.
I) “Student-on-student harassment” means conduct directed by a student or student organization toward another student or student organization that is so unwelcome, severe, pervasive, and subjectively and objectively offensive that a student is effectively denied equal access to the educational opportunities or benefits provided by the public institution of higher education.
J) “True threat” means a statement by a speaker that communicates a serious expression of an intent to commit an act of unlawful violence against a particular individual or group of individuals.
SECTION 2: Campus Free Speech
A) A public institution of higher education shall not create, maintain, or otherwise implement a bias reporting system, nor shall such institution investigate, threaten disciplinary action, or otherwise punish a campus community member for a protected expressive activity.
B) A public institution of higher education shall maintain a policy that prohibits student-on-student harassment, as such term is defined in this Act. Public institutions of higher education shall not sanction or discipline a student or student organization’s expression as student-on-student harassment if such expression does not meet the definition set forth in this Act.
C) A public institution of higher education shall not charge security fees to a student or student organization based on any of the following:
The content of the student or student organization’s expression; The content of an invited guest’s expression; or The anticipated reaction to an invited guest’s expression; D) Nothing in this Act shall be construed to prevent a public institution of higher education from:
Investigating or soliciting information about potentially illegal speech, speech associated with potentially illegal activity, or incidents in which speech rights were potentially curtailed; Imposing reasonable time, place, and manner restrictions on protected expressive activity that are narrowly tailored to serve a significant institutional interest; or Restricting speech that is not protected by the First Amendment to the United States Constitution, including, but not limited to: i. Violations of state or federal law;
ii. Expression that a court has deemed unprotected defamation;
iii. Except as limited by this Act, student-on-student harassment;
iv. Quid pro quo sexual harassment;
v. True threats; or
vi. An unjustifiable invasion of privacy or confidentiality not involving a matter of public concern;
SECTION 3: Remedies
A) Any current or former campus community member aggrieved by a violation of this Act may bring an action against, and seek appropriate relief from, a public institution of higher education and its employees who, while acting in their official capacities, were responsible for the violation. Such appropriate relief includes, but is not limited to, injunctive relief, compensatory damages, reasonable attorneys’ fees, and court costs.
B) If a court should find a violation of this Act, it shall issue an award of at least $5,000. Any current or former campus community member aggrieved by a violation of this Act may assert such violation as a defense or counter claim in any disciplinary action or in any civil or administrative proceedings brought against them. Nothing in this section shall be interpreted to limit any other remedies available to a current or former campus community member.
C) A current or former campus community member shall be required to bring suit for violation of this section not later than one year after the day the cause of action accrues. For purposes of calculating the one-year limitation period, each day that the violation persists, and each day that a policy in violation of this Act remains in effect, shall constitute a new day that the cause of action has accrued.
D) The state waives immunity under the Eleventh Amendment of the United States Constitution and consents to suit in a federal court for lawsuits arising out of this Act. A public institution of higher education that violates this act is not immune from suit or liability for the violation.
