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(b) “Peer-on-peer harassment” means conduct directed by one student
3towards another individual student, on the basis of that other student's race, color,
4creed, religion, political views, sex, national origin, disability, ancestry, age, sexual
5orientation, gender identity, pregnancy, marital status, parental status, or military
6status, that is so severe, pervasive, and objectively offensive that it effectively
7deprives the victim of access to the educational opportunities or benefits provided by
8an institution.
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(c) “Quid pro quo sexual harassment” means explicitly or implicitly
10conditioning a student's participation in an education program or activity or basing
11an educational decision on the student's submission to unwelcome sexual advances,
12requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual
13nature.
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(d) “True threat” means a statement that a speaker would reasonably foresee
15that a listener would reasonably interpret as a serious expression of a purpose to
16inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of
17political views, or other speech that is similarly protected under the First
18Amendment of the U.S. Constitution, regardless of whether the speaker has the
19ability to carry out the threat.
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20(4) Free expression policy. (a)
Statements. No later than 120 days after the
21effective date of this paragraph .... [LRB inserts date], the Board of Regents shall
22develop and adopt a policy on free expression that contains statements of at least all
23the following:
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1. That the primary function of an institution is the discovery, improvement,
25transmission, and dissemination of knowledge by means of research, teaching,
1discussion, and debate. This statement shall provide that, to fulfill this function, an
2institution must strive to ensure the fullest degree of intellectual freedom and free
3expression.
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2. That it is not the proper role of an institution to shield individuals from
5speech protected by the First Amendment of the U.S. Constitution, including ideas
6and opinions they find unwelcome, disagreeable, or even deeply offensive.
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3. That students and faculty have the freedom to discuss any problem that
8presents itself, as the First Amendment of the U.S. Constitution permits and within
9the limits of reasonable viewpoint-neutral and content-neutral restrictions on time,
10place, and manner of expression that are consistent with this section and that are
11necessary to achieve a significant institutional interest, provided that these
12restrictions are clear, published, and provide ample alternative means of expression.
13Students and faculty shall be permitted to assemble and engage in spontaneous
14expressive activity as long as such activity is not unlawful and does not materially
15and substantially disrupt the functioning of an institution, subject to the
16requirements of this section.
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4. That any person lawfully present on campus may protest or demonstrate
18there. This statement shall make clear that protests and demonstrations that
19interfere with the rights of others to engage in or listen to expressive activity shall
20not be permitted and shall be subject to sanction. This statement shall not prohibit
21professors or other instructors from maintaining order in the classroom.
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5. That the campuses of the institution are open to any speaker whom students,
23student groups, or members of the faculty have invited.
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6. That the public areas of institutions are public forums and open on the same
25terms to any speaker.
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17. That each institution shall strive to remain neutral, as an institution, on the
2public policy controversies of the day, and may not take action, as an institution, on
3the public policy controversies of the day in such a way as to require students or
4faculty to publicly express a given view of social policy.
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(b)
Discipline. The policy required under par. (a) shall satisfy all of the
6following:
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1. Include a range of disciplinary sanctions for anyone under the jurisdiction
8of the institution who engages in violent or other disorderly conduct that materially
9and substantially disrupts the free expression of others.
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2. Provide that in all disciplinary cases involving expressive conduct, students
11are entitled to a disciplinary hearing under published procedures, including, at least
12all of the following:
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a. The right to receive advanced written notice of the charges.
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b. The right to review the evidence in support of the charges.
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c. The right to confront witnesses against them.
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d. The right to present a defense.
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e. The right to call witnesses.
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f. A decision by an impartial arbiter or panel.
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g. The right of appeal.
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h. The right to active assistance of counsel.
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3. Require informing a student that he or she has the option to record his or her
22disciplinary hearing under subd. 2.
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4. Require a formal investigation and disciplinary hearing the 2nd time a
24student is alleged to have interfered with the expressive rights of others.
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15. Require suspension for a minimum of one semester of any student who has
2twice been found responsible for interfering with the expressive rights of others at
3any time during the student's enrollment.
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6. Require the expulsion of any student who has thrice been found responsible
5for interfering with the expressive rights of others at any time during the student's
6enrollment.
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(c)
Reporting. The policy required under par. (a) shall include requirements
8and procedures for all of the following:
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1. Allowing any person to make a report that another person has violated this
10section or the policy.
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2. Requiring a formal investigation and disciplinary hearing if 2 or more
12reports are made regarding the same person's violation of this section or the policy.
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(d)
Inconsistent policies and rules. The policy required under par. (a)
14supersedes and nullifies any prior provisions in the policies and rules of the Board
15of Regents or an institution that restrict speech on campus and are, therefore,
16inconsistent with the policy. The Board of Regents and each institution shall remove
17or revise any such provisions in its policies and rules to ensure compatibility with the
18the policy required under par. (a).
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19(5) Legislative report. (a) Annually, no later than September 1, the Board of
20Regents shall submit to the governor and the chief clerk of each house of the
21legislature, for distribution to the appropriate standing committees under s. 13.172
22(3), a report that includes all of the following:
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1. A description of any barriers to or disruptions of free expression within
24institutions.
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12. A description of the administrative handling and discipline relating to
2disruptions or barriers described in subd. 1. and a description of all disciplinary
3hearings involving expressive conduct and the outcomes of those hearings.
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3. A description of substantial difficulties, controversies, or successes in
5maintaining a posture of administrative and institutional neutrality with regard to
6political or social issues.
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4. Any assessments, criticisms, commendations, or recommendations the
8Board of Regents sees fit to include in the report.
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(b) Each standing committee that receives a report under par. (a) shall hold a
10public hearing before taking any action regarding that report.
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(c) The Board of Regents shall make the report required under par. (a) available
12to the public on the system's Internet site.
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13(6) Notice; orientation; training. (a) Upon adoption of the policy required
14under sub. (4) (a), the Board of Regents shall provide a notice to all students enrolled
15in the system informing the students about the policy.
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(b) Each institution shall include in orientation programs for freshmen and
17transfer students a section describing the policies and rules regarding free
18expression consistent with this section. Upon hiring, each institution shall provide
19training to employees on those policies and rules. Each institution shall provide
20annual training to instructors on those policies and rules.
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21(7) Rules. The Board of Regents may promulgate rules to further the purposes
22of the policy required under sub. (4) (a).
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23(8) Construction. Nothing in this section shall be construed to prevent
24institutions from regulating student speech or activity that is prohibited by law.
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1(9) Restriction of student expression. Except as further limited by this
2section, institutions may restrict student expression only for expressive activity not
3protected by the First Amendment of the U.S. Constitution, including any of the
4following:
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(a) Violations of state or federal law.
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(b) Expression that a court has deemed unprotected defamation.
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(c) Peer-on-peer harassment.
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(d) Quid pro quo sexual harassment.
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(e) True threats.
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(f) An unjustifiable invasion of privacy or confidentiality not involving a matter
11of public concern.
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(g) An action that unlawfully disrupts the function of an institution.
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(h) A violation of a reasonable time, place, and manner restriction on expressive
14activities that is consistent with sub. (4) (a) 3.
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15(10) Enforcement. (a) A person whose expressive rights are violated by a
16violation of this section or the policy adopted under sub. (4) (a) may bring an action
17to enjoin the violation of this section or the policy.
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(b) In an action brought under par. (a), if the court finds that a violation of this
19subsection occurred, the court shall award injunctive relief for the violation, and,
20notwithstanding s. 814.04 (1), reasonable attorney fees and costs. The court shall
21also award the actual damages caused by the violation or $1,000, whichever is
22greater.
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(c) A person specified in par. (a) shall bring an action for a violation of this
24subsection within one year after the date the cause of action accrues. For the purpose
25of calculating the one-year limitation period, each day that the violation persists or
1each day that a policy in violation of this subsection remains in effect constitutes a
2new violation of this subsection and shall be considered a day that the cause of action
3has accrued.
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(d) If a defendant prevails in an action brought under par. (a) and the court
5finds the action was frivolous or brought in bad faith, then, notwithstanding s. 814.04
6(1), the defendant shall recover reasonable attorney fees incurred in connection with
7defending the action.
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8Section
2. 36.35 (1) of the statutes is amended to read:
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36.35
(1) Power to suspend; rules. The board may delegate the power to
10suspend or expel students for misconduct or other cause prescribed by the board.
11Subject to sub. (4)
and s. 36.02 (4) (b), the board shall promulgate rules under ch. 227
12governing student conduct and procedures for the administration of violations.
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13Section 3
. 227.01 (13) (Lo) of the statutes is created to read:
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227.01
(13) (Lo) Adopts the policy required under s. 36.02 (4) (a).