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LRB-2125/3
ARG:wlj
2021 - 2022 LEGISLATURE
December 2, 2021 - Introduced by Representatives Cabral-Guevara, Murphy,
Allen, Armstrong, Brandtjen, Horlacher, James, Kuglitsch, Moses,
Penterman, Schraa, Tittl, Tusler and Wichgers, cosponsored by Senators
Testin and Stroebel. Referred to Committee on Colleges and Universities.
AB735,1,5 1An Act to amend 36.11 (6) (c) and 38.04 (7m); and to create 36.41, 38.34 and
239.285 (1) (c) of the statutes; relating to: free speech and academic freedom at
3University of Wisconsin System institutions and technical colleges, causes of
4action against the Board of Regents of the University of Wisconsin System and
5technical college district boards, and Wisconsin grant funding allocation.
Analysis by the Legislative Reference Bureau
This bill establishes certain standards related to free speech and academic
freedom at University of Wisconsin System institutions and technical colleges. For
violation of these standards, a UW institution or technical college may become
ineligible for Wisconsin grant funding allocation and the Board of Regents of the UW
System or technical college district board may be subject to a civil cause of action.
If a UW institution or technical college loses its Wisconsin grant funding allocation,
it must replace the amount of each student's lost Wisconsin grant with the same
amount in institutional financial aid funded from administrative expense moneys.
First Amendment protections
Under the bill, a UW institution or technical college may not do any of the
following: 1) restrict noncommercial speech protected under the First Amendment;
2) maintain and enforce time, place, and manner restrictions on expressive activities
on the publicly accessible, open outdoor areas of its campus unless those restrictions
meet specified requirements; 3) designate any area of a campus a “free speech zone”

or otherwise create policies restricting noncommercial expressive activities to a
particular area of a campus; 4) charge fees for additional security based on the
anticipated content of speech or anticipated reaction to speech; or 5) sanction
individuals or groups for discriminatory harassment unless the speech is
unwelcome, targets its victim on the basis of a protected class under law, and is
demonstrably so severe, pervasive, and objectively offensive that it effectively bars
a student from receiving equal access to educational opportunities or benefits. The
bill also specifies that all of an institution's or technical college's indoor and outdoor
public areas are considered public forums. An institution or technical college must
make every reasonable effort to prevent protected speech and sanctioned events,
activities, and instruction from being disrupted.
The bill requires an institution or technical college to annually do all of the
following: 1) conduct a survey of all students and employees on First Amendment
rights, academic freedom, perceived political or other bias at the institution or
technical college, and whether campus culture promotes self-censorship; 2) submit
a report to the legislature detailing the results of this survey; and 3) provide all
students and employees with instruction in academic freedom, due process, and First
Amendment protections.
Academic freedom
Under the bill, an institution or technical college may not sanction an
individual on the basis of content or viewpoints expressed while the individual is
directly engaged in instruction, research, or service explicitly related to the
individual's role as a student or faculty member of the institution or technical college.
Penalties and Wisconsin grants
Under current law, the Wisconsin grant program, administered by the Higher
Educational Aids Board, provides grants to resident students enrolled in eligible
types of postsecondary schools, including UW institutions and technical colleges.
The amount of funding available for these types of eligible postsecondary schools
varies, and the UW System and technical colleges must annually submit to HEAB
a proposed formula for awarding Wisconsin grants to students enrolled in UW
institutions or technical colleges. HEAB must then approve, modify, or disapprove
these proposed formulas for awarding grants to UW or technical college students in
the next fiscal year.
Under this bill, a UW institution or technical college that violates any of the free
speech or academic freedom provisions described above more than once in a 10-year
period is ineligible for allocation of Wisconsin grants for the longer of 1) a period of
no less than one fiscal year; or 2) if the institution's or technical college's
administrator causes the violation, until the administrator is permanently removed
from his or her administrative role. HEAB's formula for awarding Wisconsin grants
must take these loss of allocation penalties into consideration. The violation giving
rise to this penalty may be found, by a preponderance of the evidence, by any of the
following: 1) a state or federal court; 2) HEAB; or 3) a legislative standing committee
having jurisdiction over matters relating to higher education. If a violating UW
institution or technical college is ineligible for allocation of Wisconsin grants, the
institution or technical college must make an award of institutional financial aid to

each affected student in the amount that the student would have received as a
Wisconsin grant if the institution or technical college had not committed the
violation. This institutional financial aid must be paid from the UW institution's or
technical college's administrative expense moneys.
In addition, the bill requires a UW institution or technical college that is found
to have violated any of the free speech or academic freedom provisions described
above to include, for 10 years, the following disclaimer on all notices to individuals
regarding admission to the UW institution or technical college: “NOTICE: We are
required by the State of Wisconsin to inform you that within the last 10 years ...
[insert name of UW institution or technical college] has violated the free speech or
academic freedom provisions in the Wisconsin statutes.”
Cause of action
Under the bill, the attorney general, a district attorney, or any person whose
expressive rights were violated may bring a court action against the Board of Regents
of the UW System or the technical college district board for violation by a UW
institution or technical college of any of the free speech or academic freedom
provisions described above and may seek an injunction and recovery of compensatory
damages for persons aggrieved by the violation. In such an action, if the court finds
a violation, the court must award to the plaintiffs all of the following: 1) total
damages for all persons aggrieved by the violation of not less than $500 for the initial
violation plus $50 for each day after the complaint is served that the violation
remains ongoing, but not exceeding an aggregate amount of $100,000 for all cases
stemming from a single controversy; and 2) court costs and reasonable attorney fees.
An award to the plaintiffs of damages, court costs, or attorney fees must be paid from
the UW institution's or technical college's administrative expense moneys.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB735,1 1Section 1. 36.11 (6) (c) of the statutes is amended to read:
AB735,3,72 36.11 (6) (c) By February 10 of each year, the board shall develop and submit
3to the higher educational aids board for its review under s. 39.285 (1) a proposed
4formula for the awarding of grants under s. 39.435, except for grants awarded under
5s. 39.435 (2) or (5), for the next fiscal year to students enrolled in the system. The
6proposed formula shall take into consideration any institution's loss of funding
7allocation under s. 36.41 (4) (b) and (c).
AB735,2
1Section 2. 36.41 of the statutes is created to read:
AB735,4,4 236.41 Campus free speech and academic freedom. (1) Definition. In this
3section, “employee” means a member of the faculty, academic staff, or university staff
4assigned to an institution.
AB735,4,6 5(2) First Amendment protections. (a) An institution may not do any of the
6following:
AB735,4,87 1. Restrict noncommercial speech protected under the First Amendment of the
8U.S. Constitution.
AB735,4,119 2. Maintain and enforce time, place, and manner restrictions on expressive
10activities on the open outdoor areas of its campus that are generally accessible to the
11public unless those restrictions meet all of the following requirements:
AB735,4,1412 a. The restrictions are reasonable, in furtherance of a significant institutional
13interest, and employ clear, published, content-neutral and viewpoint-neutral
14criteria.
AB735,4,1715 b. The restrictions provide for ample alternative means for communication and
16allow for members of the institution's community to spontaneously and
17contemporaneously distribute literature and assemble.
AB735,4,2018 3. Designate any area of a campus a “free speech zone” or otherwise create
19policies restricting noncommercial expressive activities to a particular area of a
20campus.
AB735,4,2221 4. Charge fees for additional security based on the anticipated content of speech
22or anticipated reaction to speech.
AB735,5,623 5. Sanction individuals or groups for discriminatory harassment unless the
24speech is unwelcome, targets its victim on the basis of the victim's real or perceived
25membership in a class protected under federal, state, or local law, and is

1demonstrably so severe, pervasive, and objectively offensive that it effectively bars
2a student from receiving equal access to educational opportunities or benefits. This
3subdivision does not preclude an institution from providing additional resources to
4a student affected by speech that cannot be sanctioned under this subdivision or from
5taking nonpunitive actions designed to promote a welcoming, inclusive
6environment.
AB735,5,87 (b) All indoor and outdoor public areas operated by an institution or under the
8institution's jurisdiction shall be considered public forums.
AB735,5,139 (c) An institution shall make every reasonable effort to prevent protected
10speech and institution-sanctioned events, activities, and instruction from being
11disrupted. Nothing in this section shall prevent or inhibit an institution from
12preventing disruptions or punishing disrupters if the institution, to do so, does not
13prevent or punish expression that is protected under the First Amendment.
AB735,5,1414 (d) An institution shall do all of the following:
AB735,5,1715 1. Conduct an annual survey of all students and employees on First
16Amendment rights, academic freedom, perceived political, ideological, or other bias
17at the institution, and whether campus culture promotes self-censorship.
AB735,5,1918 2. Annually submit to the legislature under s. 13.172 (2) a report detailing the
19results of the survey under subd. 1.
AB735,5,2120 3. Annually provide all students and employees with instruction in academic
21freedom, due process, and First Amendment protections.
AB735,5,25 22(3) Academic freedom. An institution may not sanction an individual on the
23basis of the content or viewpoints expressed while the individual is directly engaged
24in instruction, research, or service explicitly related to the individual's role as a
25student or faculty member of the institution.
AB735,6,8
1(4) Penalties; institutional aid. (a) An institution that violates this section,
2for 10 years following the date of the finding of the violation under par. (e), shall
3include a disclaimer on all notices, both printed or electronic, to individuals
4regarding admission to the institution, in a type size no smaller than the majority
5of the rest of the notice, in substantially the following form: “NOTICE: We are
6required by the State of Wisconsin to inform you that within the last 10 years ...
7[insert name of institution] has violated the free speech or academic freedom
8provisions in the Wisconsin statutes.”
AB735,6,119 (b) An institution that violates this section more than once in a 10-year period
10is ineligible for allocation of grants under s. 39.435, except grants awarded under s.
1139.435 (2) or (5), for a period of no less than one fiscal year.
AB735,6,1512 (c) In addition to the period of ineligibility under par. (b), if an institution's
13administrator causes the violation of this section, the institution is not eligible for
14allocation of grants under s. 39.435, except grants awarded under s. 39.435 (2) or (5),
15until the administrator is permanently removed from his or her administrative role.
AB735,6,2316 (d) If an institution that violates this section is ineligible under par. (b) or (c)
17for allocation of grants under s. 39.435, except grants awarded under s. 39.435 (2)
18or (5), the institution shall make an award of institutional financial aid to each
19student affected by the institution's ineligibility under par. (b) or (c) in the amount
20that the student would have received as a grant under s. 39.435 if the institution had
21not violated this section. The board shall ensure that the institutional financial aid
22awarded to each student under this paragraph is paid from moneys allocated for the
23administrative expenses of the institution.
AB735,6,2524 (e) The penalties under this subsection apply if any of the following find, on the
25basis of a preponderance of the evidence, that the institution violated this section:
AB735,7,1
11. A state or federal court in this state.
AB735,7,22 2. The higher educational aids board.
AB735,7,43 3. Any standing committee of the legislature having jurisdiction over matters
4relating to higher education.
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