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2019 - 2020 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 1,
TO SENATE BILL 403
November 19, 2019 - Offered by Senator Kapenga.
SB403-SSA1,1,4 1An Act to amend 36.35 (1); and to create 36.02, 38.002 and 227.01 (13) (Lo) of
2the statutes; relating to: free expression within the University of Wisconsin
3and Technical College Systems, providing an exemption from rule-making
4procedures, and granting rule-making authority.
Analysis by the Legislative Reference Bureau
This bill requires both the Board of Regents of the University of Wisconsin
System and the Technical College System Board each to adopt a policy on free
expression that applies at each UW institution and technical college and supersedes
and nullifies any prior policies or rules restricting free expression. The bill allows
each board to adopt the policy without promulgating rules and requires the policy to
be adopted no later than 120 days after the bill's effective date. The policy must
contain statements regarding the following: 1) that the primary function of a UW
institution or technical college is the discovery, improvement, transmission, and
dissemination of knowledge; 2) that it is not the proper role of a UW institution or
technical college to shield individuals from speech protected by the First Amendment
of the U.S. Constitution; 3) that students and faculty have the freedom to discuss any
problem as permitted by the First Amendment and within specified limits; 4) that
any person lawfully present on campus may protest or demonstrate, but may not
engage in conduct that materially and substantially disrupts another's expressive

activity in a campus space reserved for that activity under the exclusive control of
a particular group; 5) that campuses are open to invited speakers; 6) that public
areas are public forums and open on the same terms to any speaker; and 7) that UW
institutions and technical colleges may not take action on public policy controversies
in such a way that requires students or faculty to publicly express a given view of
social policy.
The policy must include a range of disciplinary sanctions for anyone under a
UW institution's or technical college's jurisdiction who engages in violent or other
disorderly conduct that materially and substantially disrupts the free expression of
others. In addition, the policy must provide that in disciplinary cases involving
expressive conduct, students are entitled to a disciplinary hearing under published
procedures that include specified rights. The policy must require a formal
investigation and disciplinary hearing the second time a student is alleged to have
interfered with the expressive rights of others. If a student is twice found responsible
for interfering with the expressive rights of others at any time during his or her
enrollment, the student must be suspended for a minimum of one semester. If a
student is found responsible for such interference a third time, the student must be
expelled.
The bill also requires the policy to allow any person to make a report that
another person has violated the policy. In addition, a formal investigation and
disciplinary hearing is required if two or more such reports are made regarding the
same person.
The bill provides that UW institutions and technical colleges may restrict
student expression only for expressive activity that is not protected by the First
Amendment, including state or federal law violations, defamation, specified types of
harassment and threats, certain invasions of privacy or confidentiality, and
violations of reasonable time, place, or manner restrictions on expressive activities.
The bill also requires the boards to make annual reports to the legislature and
governor that describe institutional neutrality, free expression barriers and
disruptions, and administrative handling and discipline relating to those barriers
and disruptions. Before a legislative standing committee can take any action
regarding a report, the bill requires the committee to hold a public hearing.
In addition, the bill does the following:
1. Allows a person whose expressive rights are violated by a violation of the
bill's requirements to bring an action to enjoin a violation and obtain reasonable
attorney fees and damages.
2. Allows a defendant who prevails in an action described above to recover
reasonable attorney fees if the action was frivolous or brought in bad faith.
3. Sets forth legislative findings regarding free expression at UW institutions
and technical colleges.
4. Requires the boards to provide notice to students upon adopting the policy
required under the bill.
5. Requires UW institutions and technical colleges to do the following: a)
describe free expression policies and procedures in freshman and transfer student
orientation programs; b) provide training on those policies and procedures to

employees upon hiring; and c) provide annual training on those policies and
procedures to instructors.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB403-SSA1,1 1Section 1. 36.02 of the statutes is created to read:
SB403-SSA1,3,3 236.02 Campus Free Speech Act. (1) Legislative findings. The legislature
3finds all of the following:
SB403-SSA1,3,54 (a) Article I, section 3, of the Wisconsin Constitution recognizes the right to
5speak freely and prohibits laws abridging the liberty of speech.
SB403-SSA1,3,76 (b) The system has historically embraced a commitment to freedom of
7expression in policy.
SB403-SSA1,3,108 (c) In recent years, institutions have abdicated their responsibility to uphold
9free speech principles and these failures make it appropriate for the system to restate
10and confirm its commitment in this regard.
SB403-SSA1,3,1911 (d) In 1974, the Committee on Free Expression at Yale issued a statement
12known as the Woodward Report that stands as a classic defense of free expression
13on campuses; in 2015, the Committee on Freedom of Expression at the University
14of Chicago issued a similar and widely respected report; and in 1967, the Kalven
15Committee Report of the University of Chicago articulated the principle of
16institutional neutrality regarding political and social issues and the essential role of
17such neutrality in protecting freedom of thought and expression at universities. The
18principles affirmed by these 3 highly regarded reports are inspiring articulations of
19the critical importance of free expression in higher education.
SB403-SSA1,4,3
1(e) The legislature views freedom of expression as being of critical importance
2and requires that each institution ensure free, robust, and uninhibited debate and
3deliberation by students whether on or off campus.
SB403-SSA1,4,54 (f) The legislature has determined that it is a matter of statewide concern that
5all institutions officially recognize freedom of speech as a fundamental right.
SB403-SSA1,4,6 6(2) Short title. This section shall be known as the “Campus Free Speech Act.”
SB403-SSA1,4,7 7(3) Definitions. In this section:
SB403-SSA1,4,88 (a) “Institution” means a college campus or university.
SB403-SSA1,4,179 (b) “Materially and substantially disrupts” means when a person, with the
10intent to or knowledge of doing so, significantly hinders another person's or group's
11expressive activity, prevents the communication of a message, or prevents the
12transaction of the business of a lawful meeting, gathering, or procession by engaging
13in fighting, violence, or seriously disruptive behavior, or physically blocking or
14hindering another person from attending, listening to, viewing, or otherwise
15participating in an expressive activity. “Materially and substantially disrupts” does
16not include engaging in conduct that is protected under the First Amendment of the
17U.S. Constitution, including any of the following:
SB403-SSA1,4,2018 1. Lawful protests or counterprotests in the outdoor areas of campus generally
19accessible to the members of the public, except during times when those areas have
20been reserved in advance for other events.
SB403-SSA1,4,2221 2. Minor, brief, or fleeting nonviolent disruptions of events that are isolated and
22short in duration.
SB403-SSA1,5,423 (c) “Peer-on-peer harassment” means conduct directed by one student towards
24another individual student, on the basis of that other student's race, color, creed,
25religion, political views, sex, national origin, disability, ancestry, age, sexual

1orientation, gender identity, pregnancy, marital status, parental status, or military
2status, that is so severe, pervasive, and objectively offensive that it effectively
3deprives the victim of access to the educational opportunities or benefits provided by
4an institution.
SB403-SSA1,5,95 (d) “Quid pro quo sexual harassment” means explicitly or implicitly
6conditioning a student's participation in an education program or activity or basing
7an educational decision on the student's submission to unwelcome sexual advances,
8requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual
9nature.
SB403-SSA1,5,1610 (e) “True threat” means a statement that a speaker would reasonably foresee
11that a listener would reasonably interpret as a serious expression of an intent to
12commit an unlawful act of violence to a particular individual or group of individuals,
13as distinguished from hyperbole, jest, innocuous talk, expressions of political views,
14or other speech that is similarly protected under the First Amendment of the U.S.
15Constitution, regardless of whether the speaker has the ability to carry out the
16threat.
SB403-SSA1,5,20 17(4) Free expression policy. (a) Statements. No later than 120 days after the
18effective date of this paragraph .... [LRB inserts date], the Board of Regents shall
19develop and adopt a policy on free expression that contains statements of at least all
20the following:
SB403-SSA1,5,2521 1. That the primary function of an institution is the discovery, improvement,
22transmission, and dissemination of knowledge by means of research, teaching,
23discussion, and debate. This statement shall provide that, to fulfill this function, an
24institution must strive to ensure the fullest degree of intellectual freedom and free
25expression.
SB403-SSA1,6,3
12. That it is not the proper role of an institution to shield individuals from
2speech protected by the First Amendment of the U.S. Constitution, including ideas
3and opinions they find unwelcome, disagreeable, or even deeply offensive.
SB403-SSA1,6,134 3. That students and faculty have the freedom to discuss any problem that
5presents itself, as the First Amendment of the U.S. Constitution permits and within
6the limits of reasonable viewpoint-neutral and content-neutral restrictions on time,
7place, and manner of expression that are consistent with this section and that are
8in furtherance of a significant institutional interest, provided that these restrictions
9are clear, published, and provide ample alternative means of expression. Students
10and faculty shall be permitted to assemble and engage in spontaneous expressive
11activity as long as such activity is not unlawful and does not materially and
12substantially disrupt the functioning of an institution, subject to the requirements
13of this section.
SB403-SSA1,6,1814 4. That any person lawfully present on campus may protest or demonstrate
15there. This statement shall make clear that persons may not engage in conduct that
16materially and substantially disrupts another's expressive activity if that activity is
17occurring in a campus space reserved for that activity under the exclusive control of
18a particular group.
SB403-SSA1,6,2019 5. That the campuses of the institution are open to any speaker whom students,
20student groups, or members of the faculty have invited.
SB403-SSA1,6,2221 6. That the public areas of institutions are public forums and open on the same
22terms to any speaker.
SB403-SSA1,6,2523 7. That each institution may not take action, as an institution, on the public
24policy controversies of the day in such a way as to require students or faculty to
25publicly express a given view of social policy.
SB403-SSA1,7,2
1(b) Discipline. The policy required under par. (a) shall satisfy all of the
2following:
SB403-SSA1,7,53 1. Include a range of disciplinary sanctions for anyone under the jurisdiction
4of the institution who engages in violent or other disorderly conduct that materially
5and substantially disrupts the free expression of others.
SB403-SSA1,7,86 2. Provide that in all disciplinary cases involving expressive conduct, students
7are entitled to a disciplinary hearing under published procedures, including at least
8all of the following:
SB403-SSA1,7,99 a. The right to receive advanced written notice of the charges.
SB403-SSA1,7,1010 b. The right to review the evidence in support of the charges.
SB403-SSA1,7,1111 c. The right to confront witnesses against them.
SB403-SSA1,7,1212 d. The right to present a defense.
SB403-SSA1,7,1313 e. The right to call witnesses.
SB403-SSA1,7,1414 f. A decision by an impartial arbiter or panel.
SB403-SSA1,7,1515 g. The right of appeal.
SB403-SSA1,7,1616 h. The right to active assistance of counsel.
SB403-SSA1,7,1817 3. Require informing a student that he or she has the option to record his or her
18disciplinary hearing under subd. 2.
SB403-SSA1,7,2019 4. Require a formal investigation and disciplinary hearing the 2nd time a
20student is alleged to have interfered with the expressive rights of others.
SB403-SSA1,7,2321 5. Require suspension for a minimum of one semester of any student who has
22twice been found responsible for interfering with the expressive rights of others at
23any time during the student's enrollment.
SB403-SSA1,8,3
16. Require the expulsion of any student who has thrice been found responsible
2for interfering with the expressive rights of others at any time during the student's
3enrollment.
SB403-SSA1,8,54 (c) Reporting. The policy required under par. (a) shall include requirements
5and procedures for all of the following:
SB403-SSA1,8,76 1. Allowing any person to make a report that another person has violated this
7section or the policy.
SB403-SSA1,8,98 2. Requiring a formal investigation and disciplinary hearing if 2 or more
9reports are made regarding the same person's violation of this section or the policy.
SB403-SSA1,8,1510 (d) Inconsistent policies and rules. The policy required under par. (a)
11supersedes and nullifies any prior provisions in the policies and rules of the Board
12of Regents or an institution that restrict speech on campus and are, therefore,
13inconsistent with the policy. The Board of Regents and each institution shall remove
14or revise any such provisions in its policies and rules to ensure compatibility with the
15policy required under par. (a).
SB403-SSA1,8,19 16(5) Legislative report. (a) Annually, no later than September 1, the Board of
17Regents shall submit to the governor and the chief clerk of each house of the
18legislature, for distribution to the appropriate standing committees under s. 13.172
19(3), a report that includes all of the following:
SB403-SSA1,8,2120 1. A description of any barriers to or disruptions of free expression within
21institutions.
SB403-SSA1,8,2422 2. A description of the administrative handling and discipline relating to
23disruptions or barriers described in subd. 1. and a description of all disciplinary
24hearings involving expressive conduct and the outcomes of those hearings.
SB403-SSA1,9,3
13. A description of substantial difficulties, controversies, or successes in
2maintaining a posture of administrative and institutional neutrality with regard to
3political or social issues.
SB403-SSA1,9,54 4. Any assessments, criticisms, commendations, or recommendations the
5Board of Regents sees fit to include in the report.
SB403-SSA1,9,76 (b) Each standing committee that receives a report under par. (a) shall hold a
7public hearing before taking any action regarding that report.
SB403-SSA1,9,98 (c) The Board of Regents shall make the report required under par. (a) available
9to the public on the system's Internet site.
SB403-SSA1,9,12 10(6) Notice; orientation; training. (a) Upon adoption of the policy required
11under sub. (4) (a), the Board of Regents shall provide a notice to all students enrolled
12in the system informing the students about the policy.
SB403-SSA1,9,1713 (b) Each institution shall include in orientation programs for freshmen and
14transfer students a section describing the policies and rules regarding free
15expression consistent with this section. Upon hiring, each institution shall provide
16training to employees on those policies and rules. Each institution shall provide
17annual training to instructors on those policies and rules.
SB403-SSA1,9,19 18(7) Rules. The Board of Regents may promulgate rules to further the purposes
19of the policy required under sub. (4) (a).
SB403-SSA1,9,21 20(8) Construction. Nothing in this section shall be construed to prevent
21institutions from regulating student speech or activity that is prohibited by law.
SB403-SSA1,9,25 22(9) Restriction of student expression. Except as further limited by this
23section, institutions may restrict student expression only for expressive activity not
24protected by the First Amendment of the U.S. Constitution, including any of the
25following:
SB403-SSA1,10,1
1(a) Violations of state or federal law.
SB403-SSA1,10,22 (b) Expression that a court has deemed unprotected defamation.
SB403-SSA1,10,33 (c) Peer-on-peer harassment.
SB403-SSA1,10,44 (d) Quid pro quo sexual harassment.
SB403-SSA1,10,55 (e) True threats.
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