LRB-4719/1
ARG:amn
2023 - 2024 LEGISLATURE
October 30, 2023 - Introduced by Senators Cabral-Guevara and Tomczyk,
cosponsored by Representatives
Nedweski, Murphy, Allen, Behnke,
Brandtjen, Dittrich, Edming, Goeben, Gundrum, Maxey, Moses, O'Connor,
Penterman, Rettinger, Schraa and Tusler. Referred to Committee on
Universities and Revenue.
SB575,1,7
1An Act to amend 36.11 (6) (c) and 38.04 (7m); and
to create 36.41, 36.42, 38.34,
238.35 and 39.285 (1) (c) of the statutes;
relating to: free speech and academic
3freedom at University of Wisconsin System institutions and technical colleges,
4due process in disciplinary proceedings at University of Wisconsin System
5institutions and technical colleges, Wisconsin grant funding allocation, and
6causes of action against the Board of Regents of the University of Wisconsin
7System and technical college district boards.
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, the Board of Regents of the UW System or technical
college district board may be subject to a civil cause of action and must provide
certain public notice of the violation.
The bill also establishes certain due process standards in disciplinary
proceedings at UW System institutions and technical colleges. For violation of these
standards, a UW institution or technical college may become ineligible for Wisconsin
grant funding allocation.
free speech and academic freedom
First Amendment protections
Under the bill, a UW institution or technical college may not do any of the
following: 1) restrict speech protected under the First Amendment, if the speaker's
conduct is not unlawful and does not materially and substantially disrupt the
functioning of the UW institution or technical college; 2) maintain and enforce time,
place, and manner restrictions on expressive activities on the publicly accessible,
open outdoor areas of its campus and indoor areas that have been designated as
public forums, except classrooms while they are in use for instructional purposes,
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) subject to an exception,
require a permit as a condition of being allowed to engage in expressive activities
protected under the bill; 5) charge security fees, as part of a permit application, based
on the content of expression or anticipated reaction; or 6) sanction individuals or
groups for discriminatory harassment unless the speech targets its victim on the
basis of a protected class under law, and is so severe, pervasive, and objectively
offensive that it effectively bars a student from receiving equal access to educational
opportunities or benefits. Under the bill, if a permit is required, the permitting
process and any security fee must be content and viewpoint neutral.
The bill also specifies that all of an institution's or technical college's indoor
areas that have been designated as public forums and publicly accessible outdoor
areas, except classrooms while they are in use for instructional purposes, are
governed by rules applicable to traditional public forums. The bill specifies that its
provisions do not 1) enable individuals to engage in conduct that intentionally,
materially, and substantially disrupts another's expressive activity in a campus
space reserved for that activity; or 2) limit the right of student expression at campus
locations not specified in the bill.
The bill requires an institution or technical college to do all of the following: 1)
conduct a survey biennially of 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
biennially to the legislature detailing the results of this survey; and 3) annually
provide all students and employees with instruction in academic freedom, due
process, and First Amendment protections.
Academic freedom
Under the bill, a UW or technical college policy or employee may not limit the
expressive rights and academic freedom of an instructor to 1) conduct research,
publish, lecture, or teach in the academic setting; 2) require students to participate
in instructional exercises with legitimate pedagogical purposes that involve
exploring, or arguing for or against, any argument or assertion; or 3) speak publicly
as a private citizen on matters of public concern.
Principles
The bill sets forth principles of academic freedom and freedom of expression to
which the UW System and each institution must adhere, as well as UW System and
institution responsibilities associated with these principles.
Notice and cause of action
The bill requires a UW institution or technical college that is found by a state
or federal court, by a preponderance of the evidence, to have violated any of the free
speech or academic freedom provisions described above to include, for four 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 four years ... [insert name of UW institution or
technical college] has violated the free speech or academic freedom provisions in the
Wisconsin statutes.”
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 damages,
court costs, and attorney fees 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 prevailing 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.
due process in disciplinary proceedings
Due process guarantees
Under the bill, a student enrolled in a UW institution or technical college has
a property interest in maintaining the student's status as a student that may be
terminated against the student's will only for due cause, including failure to meet
academic standards or attendance requirements, failure to pay tuition or other fees,
or violating conduct rules. A student accused of a disciplinary or conduct violation
that carries a potential penalty of expulsion or suspension of more than nine days,
and a UW institution's or technical college's employee accused of a disciplinary or
conduct violation, have the right to be represented, at the person's own expense, by
a licensed attorney or non-attorney advocate who is permitted to fully participate
during the disciplinary proceeding. The same right applies to a student
organization, employee organization, or independent organization recognized by the
UW institution or technical college (organization) accused of a violation and to a
complaining student if the disciplinary proceeding arises from the student's
complaint. Prior to initiating a disciplinary proceeding or investigation, a UW
institution or technical college must notify the student, employee, or organization
that a complaint has been made and inform the student, employee, or organization
of the student's, employee's, or organization's due process rights. A UW institution
or technical college must ensure that all parties to a disciplinary proceeding,
including if applicable an accusing student, have access to all material evidence,
including both inculpatory and exculpatory evidence, not later than one week prior
to the start of any formal hearing or similar adjudicatory proceeding. Before a
disciplinary proceeding is scheduled, and at least two business days before a student,
employee, or organization may be questioned about allegations of violations of the
institution's or technical college's disciplinary or conduct rules, the institution or
technical college must advise the student, employee, or organization in writing of
these rights. A UW institution or technical college is not obligated to follow the
state's rules of evidence in a disciplinary proceeding, but must make a good faith
effort to include only relevant, probative evidence and must exclude evidence that
is neither relevant nor probative. A UW institution or technical college must ensure
that a disciplinary proceeding is carried out free from conflicts of interest by
prohibiting overlap of administrative or adjudicative roles.
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 due
process 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.
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:
SB575,1
1Section 1
. 36.11 (6) (c) of the statutes is amended to read:
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136.11
(6) (c) By February 10 of each year, the board shall develop and submit
2to the higher educational aids board for its review under s. 39.285 (1) a proposed
3formula for the awarding of grants under s. 39.435, except for grants awarded under
4s. 39.435 (2) or (5), for the next fiscal year to students enrolled in the system.
The
5proposed formula shall take into consideration any institution's loss of funding
6allocation under s. 36.42 (3) (a) and (b).
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7Section 2
. 36.41 of the statutes is created to read:
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836.41 Campus free speech and academic freedom. (1) Definition. In this
9section, “employee” means a member of the faculty, academic staff, or university staff
10assigned to an institution. “Employee” also includes the institution's graduate
11assistants and employees in training.
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12(2) Principles of academic freedom and freedom of expression. (a) The
13system and each institution shall adhere to the following principles of academic
14freedom and freedom of expression in order to achieve the system's mission under s.
1536.01 (2):
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1. Academic freedom includes the freedom to explore all avenues of scholarship,
17research, and creative expression, and to reach conclusions according to one's own
18scholarly discernment. Freedom of expression includes the right to discuss and
19present scholarly opinions and conclusions on all matters both in and outside the
20classroom. These freedoms include the right to speak and write as a member of an
21institution's community or as a private citizen without institutional discipline or
22restraint on scholarly matters or on matters of public concern. The system and each
23institution shall remain committed to these principles and provide all members of
24an institution's community the broadest possible latitude to explore ideas and to
25speak, write, listen, challenge, and learn.
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12. Although different ideas in an institution's community often and quite
2naturally conflict, it is not the proper role of an institution to attempt to shield
3individuals from ideas and opinions the institution or others find unwelcome,
4disagreeable, or even deeply offensive. Despite the great value of civility, concerns
5about civility and mutual respect may never be used as justification for closing off
6discussion of ideas, however offensive or disagreeable those ideas may be to some
7members within an institution's community.
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3. The freedom to debate and discuss the merits of competing ideas does not
9mean that members of an institution's community may say whatever they wish,
10wherever they wish. Consistent with long-standing practice informed by law, the
11system and each institution may restrict expression that violates the law, that falsely
12defames a specific individual, that constitutes a genuine threat or discriminatory
13harassment, that unjustifiably invades substantial privacy or confidentiality
14interests, or that is otherwise directly incompatible with the functioning of an
15institution. In addition, subject to sub. (3) (a) 2., the system and each institution may
16reasonably regulate the time, place, and manner of expression to ensure that it does
17not disrupt ordinary activities. However, these exceptions to the general principle
18of freedom of expression shall be construed narrowly and may not be applied in a
19manner that is inconsistent with the system's and each institution's commitment to
20a completely free and open discussion of ideas.
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(b) The principles stated in par. (a) carry responsibilities, as follows:
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1. Academic freedom carries the responsibility for the faithful performance of
23professional duties and obligations. All members of an institution's community share
24in the responsibility for maintaining civility and a climate of mutual respect.
25Although members of an institution's community are free to criticize and contest the
1views expressed on campus, they may not obstruct or otherwise interfere with the
2freedom of others, including speakers who are invited to campus, to express views
3they reject or even loathe.
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2. Freedom of expression carries the obligation to make clear that when
5speaking on matters of public interest or concern, one is speaking on behalf of oneself,
6not the institution.
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3. An institution has a solemn responsibility not only to promote lively and
8fearless exploration, deliberation, and debate of ideas, but also to protect those
9freedoms when others attempt to restrict them. Exploration, deliberation, and
10debate may not be suppressed because the ideas put forth are thought by some or
11even by most members of an institution's community, or those outside the
12community, to be offensive, unwise, immoral, or wrongheaded. It is for the members
13of an institution's community, not for the institution itself, to make those judgments
14for themselves, and to act on those judgments not by seeking to suppress exploration
15of ideas or expression of speech, but by openly and vigorously contesting the ideas
16that they oppose. Fostering the ability of members of an institution's community to
17engage in such debate and deliberation in an effective and responsible manner is an
18essential part of an institution's educational mission.
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19(3) First Amendment protections. (a) Except as specified in this section, an
20institution may not do any of the following:
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1. Restrict speech protected under the First Amendment of the U.S.
22Constitution, including noncommercial expressive activities protected under the
23provisions of this section, which include all forms of peaceful assembly, protests,
24speeches, distribution of literature, carrying signs, circulating petitions, and the
25recording and lawful publication, including Internet publication, of video and audio
1lawfully recorded in public outdoor areas of public institutions of higher education,
2if the speaker's conduct is not unlawful and does not materially and substantially
3disrupt the functioning of the institution.
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2. Maintain and enforce time, place, and manner restrictions on expressive
5activities on the open outdoor areas of its campus that are generally accessible to the
6public and indoor areas that have been designated as public forums, except
7classrooms while they are in use for instructional purposes, unless those restrictions
8meet all of the following requirements:
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a. The restrictions are reasonable, in furtherance of a significant institutional
10interest, and employ clear, published, content-neutral, and viewpoint-neutral
11criteria.
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b. The restrictions provide for ample alternative means for communication of
13the information and allow for members of the institution's community to
14spontaneously and contemporaneously distribute literature and assemble.
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3. Designate any area of a campus a “free speech zone” or otherwise create
16policies restricting noncommercial expressive activities to a particular area of a
17campus.
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4. Require a permit from any individual or group as a condition of being allowed
19to engage in expressive activities protected under this section, unless the individual
20or group is seeking exclusive control of a location for its expressive activity at a
21reserved time. Any such permitting process may not be overly burdensome, and
22applications for permits shall be evaluated solely using published content and
23viewpoint-neutral criteria.
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5. Charge security fees to a student or a student group, as part of an application
25for those expressive activities that require a permit, based on the content of the
1expression, the content of the expression of an invited guest, or the anticipated
2reaction to the student's, student group's, or invited guest's expression. Whether the
3security fee is required and its amount may be determined only on the basis of
4content and viewpoint-neutral criteria. Content and viewpoint-neutral criteria
5include the time of the event, the location of the event, the anticipated size of the
6invited audience, and whether alcohol will be served. Any institution charging
7security fees pursuant to this subdivision shall publish the criteria it uses for
8assessing those charges and shall have a published process for waving the fees for
9those who cannot afford to pay them.
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6. Sanction individuals or groups for discriminatory harassment unless the
11speech targets its victim on the basis of the victim's membership in a class protected
12under federal, state, or local law, and is so severe, pervasive, and objectively offensive
13that it effectively bars a student from receiving equal access to educational
14opportunities or benefits. This subdivision does not preclude an institution from
15providing additional resources to a student affected by speech that cannot be
16sanctioned under this subdivision or from taking nonpunitive actions.
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(b) All indoor areas that have been designated as public forums and outdoor
18public areas generally accessible to the public and operated by an institution or
19under the institution's jurisdiction, except classrooms while they are in use for
20instructional purposes, shall be governed by rules applicable to traditional public
21forums.
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(c) 1. Nothing in this section enables individuals to engage in conduct that
23intentionally, materially, and substantially disrupts another's expressive activity if
24that activity is occurring in a campus space reserved for that activity under the
25exclusive use or control of a particular group.
SB575,10,5
12. For purposes of subd. 1., and subject to subd. 3., “materially and
2substantially disrupts” means when a person, with the intent or knowledge of doing
3so, significantly hinders another person's or group's expressive activity, prevents the
4communication of the message, or prevents the transaction of the business of a lawful
5meeting, gathering, or procession by doing any of the following:
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a. Engaging in fighting, violence, or seriously disruptive behavior.
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b. Physically blocking or significantly hindering any person from attending,
8listening to, viewing, or otherwise participating in an expressive activity.
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3. For purposes of subd. 1., the phrase “materially and substantially disrupts”
10does not include conduct that is protected under the First Amendment of the U.S.
11Constitution or article I, section 3, of the Wisconsin Constitution. This protected
12conduct includes lawful protests and counterprotests in the outdoor areas of campus
13generally accessible to members of the public and indoor areas that have been
14designated as public forums, except classrooms while they are in use for
15instructional purposes, except during times when those areas have been reserved in
16advance for other events, or minor, brief, or fleeting nonviolent disruptions of events
17that are isolated and short in duration.
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(d) Nothing in this section limits the right of student expression at campus
19locations that are not specified in this section.
SB575,10,2020
(e) An institution shall do all of the following:
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1. Conduct a biennial survey of students and employees on First Amendment
22rights, academic freedom, perceived political, ideological, or other bias at the
23institution, and whether campus culture promotes self-censorship. The survey shall
24be conducted using statistically sound methodology and in a manner that protects
25the confidentiality of the survey's respondents.