2019 - 2020 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 1,
TO SENATE BILL 403
November 19, 2019 - Offered by Senator Kapenga.
1An Act to amend
36.35 (1); and to create
36.02, 38.002 and 227.01 (13) (Lo) of 2
the 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
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
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
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:
36.02 of the statutes is created to read:
236.02 Campus Free Speech Act.
(1) Legislative findings.
The legislature 3
finds all of the following:
(a) Article I, section 3, of the Wisconsin Constitution recognizes the right to 5
speak freely and prohibits laws abridging the liberty of speech.
(b) The system has historically embraced a commitment to freedom of 7
expression in policy.
(c) In recent years, institutions have abdicated their responsibility to uphold 9
free speech principles and these failures make it appropriate for the system to restate 10
and confirm its commitment in this regard.
(d) In 1974, the Committee on Free Expression at Yale issued a statement 12
known as the Woodward Report that stands as a classic defense of free expression 13
on campuses; in 2015, the Committee on Freedom of Expression at the University 14
of Chicago issued a similar and widely respected report; and in 1967, the Kalven 15
Committee Report of the University of Chicago articulated the principle of 16
institutional neutrality regarding political and social issues and the essential role of 17
such neutrality in protecting freedom of thought and expression at universities. The 18
principles affirmed by these 3 highly regarded reports are inspiring articulations of 19
the critical importance of free expression in higher education.
(e) The legislature views freedom of expression as being of critical importance 2
and requires that each institution ensure free, robust, and uninhibited debate and 3
deliberation by students whether on or off campus.
(f) The legislature has determined that it is a matter of statewide concern that 5
all institutions officially recognize freedom of speech as a fundamental right.
6(2) Short title.
This section shall be known as the “Campus Free Speech Act.”
In this section:
(a) “Institution” means a college campus or university.
(b) “Materially and substantially disrupts” means when a person, with the 10
intent to or knowledge of doing so, significantly hinders another person's or group's 11
expressive activity, prevents the communication of a message, or prevents the 12
transaction of the business of a lawful meeting, gathering, or procession by engaging 13
in fighting, violence, or seriously disruptive behavior, or physically blocking or 14
hindering another person from attending, listening to, viewing, or otherwise 15
participating in an expressive activity. “Materially and substantially disrupts” does 16
not include engaging in conduct that is protected under the First Amendment of the 17
U.S. Constitution, including any of the following:
1. Lawful protests or counterprotests in the outdoor areas of campus generally 19
accessible to the members of the public, except during times when those areas have 20
been reserved in advance for other events.
2. Minor, brief, or fleeting nonviolent disruptions of events that are isolated and 22
short in duration.
(c) “Peer-on-peer harassment” means conduct directed by one student towards 24
another individual student, on the basis of that other student's race, color, creed, 25
religion, political views, sex, national origin, disability, ancestry, age, sexual
orientation, gender identity, pregnancy, marital status, parental status, or military 2
status, that is so severe, pervasive, and objectively offensive that it effectively 3
deprives the victim of access to the educational opportunities or benefits provided by 4
(d) “Quid pro quo sexual harassment” means explicitly or implicitly 6
conditioning a student's participation in an education program or activity or basing 7
an educational decision on the student's submission to unwelcome sexual advances, 8
requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual 9
(e) “True threat” means a statement that a speaker would reasonably foresee 11
that a listener would reasonably interpret as a serious expression of an intent to 12
commit an unlawful act of violence to a particular individual or group of individuals, 13
as distinguished from hyperbole, jest, innocuous talk, expressions of political views, 14
or other speech that is similarly protected under the First Amendment of the U.S. 15
Constitution, regardless of whether the speaker has the ability to carry out the 16
17(4) Free expression policy.
No later than 120 days after the 18
effective date of this paragraph .... [LRB inserts date], the Board of Regents shall 19
develop and adopt a policy on free expression that contains statements of at least all 20
1. That the primary function of an institution is the discovery, improvement, 22
transmission, and dissemination of knowledge by means of research, teaching, 23
discussion, and debate. This statement shall provide that, to fulfill this function, an 24
institution must strive to ensure the fullest degree of intellectual freedom and free 25
2. That it is not the proper role of an institution to shield individuals from 2
speech protected by the First Amendment of the U.S. Constitution, including ideas 3
and opinions they find unwelcome, disagreeable, or even deeply offensive.
3. That students and faculty have the freedom to discuss any problem that 5
presents itself, as the First Amendment of the U.S. Constitution permits and within 6
the limits of reasonable viewpoint-neutral and content-neutral restrictions on time, 7
place, and manner of expression that are consistent with this section and that are 8
in furtherance of a significant institutional interest, provided that these restrictions 9
are clear, published, and provide ample alternative means of expression. Students 10
and faculty shall be permitted to assemble and engage in spontaneous expressive 11
activity as long as such activity is not unlawful and does not materially and 12
substantially disrupt the functioning of an institution, subject to the requirements 13
of this section.
4. That any person lawfully present on campus may protest or demonstrate 15
there. This statement shall make clear that persons may not engage in conduct that 16
materially and substantially disrupts another's expressive activity if that activity is 17
occurring in a campus space reserved for that activity under the exclusive control of 18
a particular group.
5. That the campuses of the institution are open to any speaker whom students, 20
student groups, or members of the faculty have invited.
6. That the public areas of institutions are public forums and open on the same 22
terms to any speaker.
7. That each institution may not take action, as an institution, on the public 24
policy controversies of the day in such a way as to require students or faculty to 25
publicly express a given view of social policy.
The policy required under par. (a) shall satisfy all of the 2
1. Include a range of disciplinary sanctions for anyone under the jurisdiction 4
of the institution who engages in violent or other disorderly conduct that materially 5
and substantially disrupts the free expression of others.
2. Provide that in all disciplinary cases involving expressive conduct, students 7
are entitled to a disciplinary hearing under published procedures, including at least 8
all of the following:
a. The right to receive advanced written notice of the charges.
b. The right to review the evidence in support of the charges.