Amendment SSA1-SB403

2019 - 2020 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO SENATE BILL 403

November 19, 2019 - Offered by Senator Kapenga.

SB403-SSA1,1,4 An Act to amend 36.35 (1); and to create 36.02, 38.002 and 227.01 (13) (Lo) of the statutes; relating to: free expression within the University of Wisconsin and Technical College Systems, providing an exemption from rule-making procedures, 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 Section 1. 36.02 of the statutes is created to read:

SB403-SSA1,3,3 36.02 Campus Free Speech Act. (1) Legislative findings. The legislature finds all of the following:

SB403-SSA1,3,5 (a) Article I, section 3, of the Wisconsin Constitution recognizes the right to speak freely and prohibits laws abridging the liberty of speech.

SB403-SSA1,3,7 (b) The system has historically embraced a commitment to freedom of expression in policy.

SB403-SSA1,3,10 (c) In recent years, institutions have abdicated their responsibility to uphold free speech principles and these failures make it appropriate for the system to restate and confirm its commitment in this regard.

SB403-SSA1,3,19 (d) In 1974, the Committee on Free Expression at Yale issued a statement known as the Woodward Report that stands as a classic defense of free expression on campuses; in 2015, the Committee on Freedom of Expression at the University of Chicago issued a similar and widely respected report; and in 1967, the Kalven Committee Report of the University of Chicago articulated the principle of institutional neutrality regarding political and social issues and the essential role of such neutrality in protecting freedom of thought and expression at universities. The principles affirmed by these 3 highly regarded reports are inspiring articulations of the critical importance of free expression in higher education.

SB403-SSA1,4,3 (e) The legislature views freedom of expression as being of critical importance and requires that each institution ensure free, robust, and uninhibited debate and deliberation by students whether on or off campus.

SB403-SSA1,4,5 (f) The legislature has determined that it is a matter of statewide concern that all institutions officially recognize freedom of speech as a fundamental right.

SB403-SSA1,4,6 (2) Short title. This section shall be known as the “Campus Free Speech Act.”

SB403-SSA1,4,7 (3) Definitions. In this section:

SB403-SSA1,4,8 (a) “Institution” means a college campus or university.

SB403-SSA1,4,17 (b) “Materially and substantially disrupts” means when a person, with the intent to or knowledge of doing so, significantly hinders another person's or group's expressive activity, prevents the communication of a message, or prevents the transaction of the business of a lawful meeting, gathering, or procession by engaging in fighting, violence, or seriously disruptive behavior, or physically blocking or hindering another person from attending, listening to, viewing, or otherwise participating in an expressive activity. “Materially and substantially disrupts” does not include engaging in conduct that is protected under the First Amendment of the U.S. Constitution, including any of the following:

SB403-SSA1,4,20 1. Lawful protests or counterprotests in the outdoor areas of campus generally accessible to the members of the public, except during times when those areas have been reserved in advance for other events.

SB403-SSA1,4,22 2. Minor, brief, or fleeting nonviolent disruptions of events that are isolated and short in duration.

SB403-SSA1,5,4 (c) “Peer-on-peer harassment” means conduct directed by one student towards another individual student, on the basis of that other student's race, color, creed, religion, political views, sex, national origin, disability, ancestry, age, sexual orientation, gender identity, pregnancy, marital status, parental status, or military status, that is so severe, pervasive, and objectively offensive that it effectively deprives the victim of access to the educational opportunities or benefits provided by an institution.

SB403-SSA1,5,9 (d) “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.

SB403-SSA1,5,16 (e) “True threat” means a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of an intent to commit an unlawful act of violence to a particular individual or group of individuals, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other speech that is similarly protected under the First Amendment of the U.S. Constitution, regardless of whether the speaker has the ability to carry out the threat.

SB403-SSA1,5,20 (4) Free expression policy. (a) Statements. No later than 120 days after the effective date of this paragraph .... [LRB inserts date], the Board of Regents shall develop and adopt a policy on free expression that contains statements of at least all the following:

SB403-SSA1,5,25 1. That the primary function of an institution is the discovery, improvement, transmission, and dissemination of knowledge by means of research, teaching, discussion, and debate. This statement shall provide that, to fulfill this function, an institution must strive to ensure the fullest degree of intellectual freedom and free expression.

SB403-SSA1,6,3 2. That it is not the proper role of an institution to shield individuals from speech protected by the First Amendment of the U.S. Constitution, including ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.

SB403-SSA1,6,13 3. That students and faculty have the freedom to discuss any problem that presents itself, as the First Amendment of the U.S. Constitution permits and within the limits of reasonable viewpoint-neutral and content-neutral restrictions on time, place, and manner of expression that are consistent with this section and that are in furtherance of a significant institutional interest, provided that these restrictions are clear, published, and provide ample alternative means of expression. Students and faculty shall be permitted to assemble and engage in spontaneous expressive activity as long as such activity is not unlawful and does not materially and substantially disrupt the functioning of an institution, subject to the requirements of this section.

SB403-SSA1,6,18 4. That any person lawfully present on campus may protest or demonstrate there. This statement shall make clear that persons may not engage in conduct that materially and substantially disrupts another's expressive activity if that activity is occurring in a campus space reserved for that activity under the exclusive control of a particular group.

SB403-SSA1,6,20 5. That the campuses of the institution are open to any speaker whom students, student groups, or members of the faculty have invited.

SB403-SSA1,6,22 6. That the public areas of institutions are public forums and open on the same terms to any speaker.

SB403-SSA1,6,25 7. That each institution may not take action, as an institution, on the public policy controversies of the day in such a way as to require students or faculty to publicly express a given view of social policy.

SB403-SSA1,7,2 (b) Discipline. The policy required under par. (a) shall satisfy all of the following:

SB403-SSA1,7,5 1. Include a range of disciplinary sanctions for anyone under the jurisdiction of the institution who engages in violent or other disorderly conduct that materially and substantially disrupts the free expression of others.

SB403-SSA1,7,8 2. Provide that in all disciplinary cases involving expressive conduct, students are entitled to a disciplinary hearing under published procedures, including at least all of the following:

SB403-SSA1,7,9 a. The right to receive advanced written notice of the charges.

SB403-SSA1,7,10 b. The right to review the evidence in support of the charges.

SB403-SSA1,7,11 c. The right to confront witnesses against them.

SB403-SSA1,7,12 d. The right to present a defense.

SB403-SSA1,7,13 e. The right to call witnesses.

SB403-SSA1,7,14 f. A decision by an impartial arbiter or panel.

SB403-SSA1,7,15 g. The right of appeal.

SB403-SSA1,7,16 h. The right to active assistance of counsel.

SB403-SSA1,7,18 3. Require informing a student that he or she has the option to record his or her disciplinary hearing under subd. 2.

SB403-SSA1,7,20 4. Require a formal investigation and disciplinary hearing the 2nd time a student is alleged to have interfered with the expressive rights of others.

SB403-SSA1,7,23 5. Require suspension for a minimum of one semester of any student who has twice been found responsible for interfering with the expressive rights of others at any time during the student's enrollment.

SB403-SSA1,8,3 6. Require the expulsion of any student who has thrice been found responsible for interfering with the expressive rights of others at any time during the student's enrollment.

SB403-SSA1,8,5 (c) Reporting. The policy required under par. (a) shall include requirements and procedures for all of the following:

SB403-SSA1,8,7 1. Allowing any person to make a report that another person has violated this section or the policy.

SB403-SSA1,8,9 2. Requiring a formal investigation and disciplinary hearing if 2 or more reports are made regarding the same person's violation of this section or the policy.

SB403-SSA1,8,15 (d) Inconsistent policies and rules. The policy required under par. (a) supersedes and nullifies any prior provisions in the policies and rules of the Board of Regents or an institution that restrict speech on campus and are, therefore, inconsistent with the policy. The Board of Regents and each institution shall remove or revise any such provisions in its policies and rules to ensure compatibility with the policy required under par. (a).

SB403-SSA1,8,19 (5) Legislative report. (a) Annually, no later than September 1, the Board of Regents shall submit to the governor and the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under s. 13.172 (3), a report that includes all of the following:

SB403-SSA1,8,21 1. A description of any barriers to or disruptions of free expression within institutions.

SB403-SSA1,8,24 2. A description of the administrative handling and discipline relating to disruptions or barriers described in subd. 1. and a description of all disciplinary hearings involving expressive conduct and the outcomes of those hearings.

SB403-SSA1,9,3 3. A description of substantial difficulties, controversies, or successes in maintaining a posture of administrative and institutional neutrality with regard to political or social issues.

SB403-SSA1,9,5 4. Any assessments, criticisms, commendations, or recommendations the Board of Regents sees fit to include in the report.

SB403-SSA1,9,7 (b) Each standing committee that receives a report under par. (a) shall hold a public hearing before taking any action regarding that report.

SB403-SSA1,9,9 (c) The Board of Regents shall make the report required under par. (a) available to the public on the system's Internet site.

SB403-SSA1,9,12 (6) Notice; orientation; training. (a) Upon adoption of the policy required under sub. (4) (a), the Board of Regents shall provide a notice to all students enrolled in the system informing the students about the policy.

SB403-SSA1,9,17 (b) Each institution shall include in orientation programs for freshmen and transfer students a section describing the policies and rules regarding free expression consistent with this section. Upon hiring, each institution shall provide training to employees on those policies and rules. Each institution shall provide annual training to instructors on those policies and rules.

SB403-SSA1,9,19 (7) Rules. The Board of Regents may promulgate rules to further the purposes of the policy required under sub. (4) (a).

SB403-SSA1,9,21 (8) Construction. Nothing in this section shall be construed to prevent institutions from regulating student speech or activity that is prohibited by law.

SB403-SSA1,9,25 (9) Restriction of student expression. Except as further limited by this section, institutions may restrict student expression only for expressive activity not protected by the First Amendment of the U.S. Constitution, including any of the following:

SB403-SSA1,10,1 (a) Violations of state or federal law.

SB403-SSA1,10,2 (b) Expression that a court has deemed unprotected defamation.

SB403-SSA1,10,3 (c) Peer-on-peer harassment.

SB403-SSA1,10,4 (d) Quid pro quo sexual harassment.

SB403-SSA1,10,5 (e) True threats.

SB403-SSA1,10,7 (f) An unjustifiable invasion of privacy or confidentiality not involving a matter of public concern.

SB403-SSA1,10,8 (g) An action that unlawfully disrupts the function of an institution.

SB403-SSA1,10,10 (h) A violation of a reasonable time, place, and manner restriction on expressive activities that is consistent with sub. (4) (a) 3.

SB403-SSA1,10,13 (10) Enforcement. (a) A person whose expressive rights are violated by a violation of this section or the policy adopted under sub. (4) (a) may bring an action to enjoin the violation of this section or the policy.

SB403-SSA1,10,18 (b) In an action brought under par. (a), if the court finds that a violation occurred, the court shall award injunctive relief for the violation, and, notwithstanding s. 814.04 (1), reasonable attorney fees and costs. The court shall also award the actual damages caused by the violation or $1,000, whichever is greater.