AB299: Bill Text Engrossed

CORRECTED COPY

LRB-4261/1

MDK:kjf&amn

2017 - 2018 LEGISLATURE

Engrossed 2017 Assembly BILL 299

September 6, 2017 - Printed by direction of Senate Chief Clerk.

AB299-engrossed,1,4 An Act to amend 36.35 (1); and to create 36.02 and 227.01 (13) (Lo) of the statutes; relating to: free expression within the University of Wisconsin System, providing an exemption from rule-making procedures, and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Engrossment information:

The text of Engrossed 2017 Assembly Bill 299 consists of the following documents adopted in the assembly on June 21, 2017: the bill as affected by Assembly Amendment 2. The text also includes the May 22, 2017, chief clerk's correction to Assembly Bill 299.

Contents of Engrossed 2017 Assembly Bill 299:

This bill requires the Board of Regents of the University of Wisconsin System to adopt a policy on free expression that applies at the four-year and two-year institutions of the system and supersedes and nullifies any prior Board of Regents or institution policies or rules restricting free expression. The bill allows the Board of Regents 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 an institution is the discovery, improvement, transmission, and dissemination of knowledge; 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; 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 that protests and demonstrations that interfere with the expressive rights of others are subject to sanction; 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 institutions must remain neutral on public policy controversies.

The policy must include a range of disciplinary sanctions for anyone under an institution'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. Also, the policy must require all of the following: 1) a formal investigation and disciplinary hearing the second time a student is alleged to have interfered with the expressive rights of others; 2) a minimum one-semester suspension of a student who is twice found responsible for such interference; and 3) the expulsion of a student who is thrice found responsible for such interference. In addition, the policy must allow persons to report violations of the policy or the bill's requirements and must require a formal investigation and disciplinary hearing if two or more reports are made regarding the same person's violation.

The bill also provides that institutions 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 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 allows a defendant to recover attorney fees for a frivolous or bad faith action.

2. Sets forth legislative findings regarding free expression at the institutions of the UW System.

3. Requires the Board of Regents to inform students when the Board of Regents adopts the policy required by the bill.

4. Requires institutions to describe free expression policies and rules in freshman orientation programs and provide training to employees on those policies and rules.

5. Requires the Board of Regents to make annual reports to the governor and legislature regarding free expression within institutions. The report must include specified information about disciplinary hearings and other matters.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB299-engrossed,1 Section 1. 36.02 of the statutes is created to read:

AB299-engrossed,3,2 36.02 Campus Free Speech Act. (1) Legislative findings. The legislature finds all of the following:

AB299-engrossed,3,4 (a) Article I, section 3, of the Wisconsin Constitution recognizes the right to speak freely and prohibits laws abridging the liberty of speech.

AB299-engrossed,3,6 (b) The system has historically embraced a commitment to freedom of expression in policy.

AB299-engrossed,3,9 (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.

AB299-engrossed,3,18 (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.

AB299-engrossed,3,21 (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.

AB299-engrossed,3,23 (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.

AB299-engrossed,3,24 (2) Short title. This section shall be known as the “Campus Free Speech Act.”

AB299-engrossed,3,25 (3) Definitions. In this section:

AB299-engrossed,4,1 (a) “Institution” means a college campus or university.

AB299-engrossed,4,8 (b) “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.

AB299-engrossed,4,13 (c) “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.

AB299-engrossed,4,19 (d) “True threat” means a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, 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.

AB299-engrossed,4,23 (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:

AB299-engrossed,5,3 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.

AB299-engrossed,5,6 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.

AB299-engrossed,5,16 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 necessary to achieve 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.

AB299-engrossed,5,21 4. That any person lawfully present on campus may protest or demonstrate there. This statement shall make clear that protests and demonstrations that interfere with the rights of others to engage in or listen to expressive activity shall not be permitted and shall be subject to sanction. This statement shall not prohibit professors or other instructors from maintaining order in the classroom.

AB299-engrossed,5,23 5. That the campuses of the institution are open to any speaker whom students, student groups, or members of the faculty have invited.

AB299-engrossed,5,25 6. That the public areas of institutions are public forums and open on the same terms to any speaker.

AB299-engrossed,6,4 7. That each institution shall strive to remain neutral, as an institution, on the public policy controversies of the day, and 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.

AB299-engrossed,6,6 (b) Discipline. The policy required under par. (a) shall satisfy all of the following:

AB299-engrossed,6,9 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.

AB299-engrossed,6,12 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:

AB299-engrossed,6,13 a. The right to receive advanced written notice of the charges.

AB299-engrossed,6,14 b. The right to review the evidence in support of the charges.

AB299-engrossed,6,15 c. The right to confront witnesses against them.