2019 - 2020 LEGISLATURE
September 13, 2019 - Introduced by Representatives Horlacher, Vos, Murphy,
Allen, Brandtjen, Dittrich, Duchow, Edming, Felzkowski, Gundrum,
James, Katsma, Kitchens, Knodl, Krug, Kuglitsch, Kulp, Macco, Magnafici,
Quinn, Ramthun, Rohrkaste, Skowronski, Sortwell, Steffen, Tauchen,
Thiesfeldt and Tusler, cosponsored by Senators Kapenga, Stroebel,
Bernier, Craig and Olsen. Referred to Committee on Colleges and
1An Act to amend
36.35 (1); and
36.02 and 227.01 (13) (Lo) of the 2
statutes; relating to: free expression within the University of Wisconsin
3System, providing an exemption from rule-making procedures, and granting
Analysis by the Legislative Reference Bureau
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. 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
The bill 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 requires the Board of Regents 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 the institutions
of the UW System.
4. Requires the Board of Regents to provide notice to students upon adopting
the policy required under the bill.
5. Requires institutions 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:
136.02 Campus Free Speech Act. (1) Legislative findings.
The legislature 2
finds all of the following:
(a) Article I, section 3, of the Wisconsin Constitution recognizes the right to 4
speak freely and prohibits laws abridging the liberty of speech.
(b) The system has historically embraced a commitment to freedom of 6
expression in policy.
(c) In recent years, institutions have abdicated their responsibility to uphold 8
free speech principles and these failures make it appropriate for the system to restate 9
and confirm its commitment in this regard.
(d) In 1974, the Committee on Free Expression at Yale issued a statement 11
known as the Woodward Report that stands as a classic defense of free expression 12
on campuses; in 2015, the Committee on Freedom of Expression at the University 13
of Chicago issued a similar and widely respected report; and in 1967, the Kalven 14
Committee Report of the University of Chicago articulated the principle of 15
institutional neutrality regarding political and social issues and the essential role of 16
such neutrality in protecting freedom of thought and expression at universities. The 17
principles affirmed by these 3 highly regarded reports are inspiring articulations of 18
the critical importance of free expression in higher education.
(e) The legislature views freedom of expression as being of critical importance 20
and requires that each institution ensure free, robust, and uninhibited debate and 21
deliberation by students whether on or off campus.
(f) The legislature has determined that it is a matter of statewide concern that 23
all institutions officially recognize freedom of speech as a fundamental right.
24(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) “Peer-on-peer harassment” means conduct directed by one student 3
towards another individual student, on the basis of that other student's race, color, 4
creed, religion, political views, sex, national origin, disability, ancestry, age, sexual 5
orientation, gender identity, pregnancy, marital status, parental status, or military 6
status, that is so severe, pervasive, and objectively offensive that it effectively 7
deprives the victim of access to the educational opportunities or benefits provided by 8
(c) “Quid pro quo sexual harassment” means explicitly or implicitly 10
conditioning a student's participation in an education program or activity or basing 11
an educational decision on the student's submission to unwelcome sexual advances, 12
requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual 13
(d) “True threat” means a statement that a speaker would reasonably foresee 15
that a listener would reasonably interpret as a serious expression of a purpose to 16
inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of 17
political views, or other speech that is similarly protected under the First 18
Amendment of the U.S. Constitution, regardless of whether the speaker has the 19
ability to carry out the threat.
20(4) Free expression policy.
No later than 120 days after the 21
effective date of this paragraph .... [LRB inserts date], the Board of Regents shall 22
develop and adopt a policy on free expression that contains statements of at least all 23
1. That the primary function of an institution is the discovery, improvement, 25
transmission, and dissemination of knowledge by means of research, teaching,
discussion, and debate. This statement shall provide that, to fulfill this function, an 2
institution must strive to ensure the fullest degree of intellectual freedom and free 3
2. That it is not the proper role of an institution to shield individuals from 5
speech protected by the First Amendment of the U.S. Constitution, including ideas 6
and opinions they find unwelcome, disagreeable, or even deeply offensive.
3. That students and faculty have the freedom to discuss any problem that 8
presents itself, as the First Amendment of the U.S. Constitution permits and within 9
the limits of reasonable viewpoint-neutral and content-neutral restrictions on time, 10
place, and manner of expression that are consistent with this section and that are 11
necessary to achieve a significant institutional interest, provided that these 12
restrictions are clear, published, and provide ample alternative means of expression. 13
Students and faculty shall be permitted to assemble and engage in spontaneous 14
expressive activity as long as such activity is not unlawful and does not materially 15
and substantially disrupt the functioning of an institution, subject to the 16
requirements of this section.
4. That any person lawfully present on campus may protest or demonstrate 18
there. This statement shall make clear that protests and demonstrations that 19
interfere with the rights of others to engage in or listen to expressive activity shall 20
not be permitted and shall be subject to sanction. This statement shall not prohibit 21
professors or other instructors from maintaining order in the classroom.
5. That the campuses of the institution are open to any speaker whom students, 23
student groups, or members of the faculty have invited.
6. That the public areas of institutions are public forums and open on the same 25
terms to any speaker.
7. That each institution shall strive to remain neutral, as an institution, on the 2
public policy controversies of the day, and may not take action, as an institution, on 3
the public policy controversies of the day in such a way as to require students or 4
faculty to publicly express a given view of social policy.
The policy required under par. (a) shall satisfy all of the 6
1. Include a range of disciplinary sanctions for anyone under the jurisdiction 8
of the institution who engages in violent or other disorderly conduct that materially 9
and substantially disrupts the free expression of others.
2. Provide that in all disciplinary cases involving expressive conduct, students 11
are entitled to a disciplinary hearing under published procedures, including, at least 12
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.
c. The right to confront witnesses against them.
d. The right to present a defense.
e. The right to call witnesses.