SB250: Bill Text

2017 Senate BILL 250

May 17, 2017 - Introduced by Senators Harsdorf, Craig, Kapenga and Stroebel, cosponsored by Representatives Kremer, Vos, Murphy, Allen, Brandtjen, R. Brooks, Duchow, Horlacher, Hutton, Katsma, Kleefisch, Knodl, Kooyenga, Kuglitsch, Kulp, Mursau, Petersen, Quinn, Rohrkaste, Sanfelippo, Skowronski, Spiros, Tauchen, Thiesfeldt, Tittl, Tusler, Vorpagel and Wichgers. Referred to Committee on Universities and Technical Colleges.

SB250,1,4 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

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, abusive, indecent, profane, boisterous, obscene, unreasonably loud, or other disorderly conduct that interferes with 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 second time that a student is found responsible for interfering with the expressive rights of others, the policy must require the student to be suspended for a minimum of one semester or expelled.

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 requires the Board of Regents to appoint a council on free expression to make annual reports to the Board of Regents, legislature, and governor that describe institutional neutrality, free expression barriers and disruptions, and administrative handling and discipline relating to those barriers and disruptions. The council must consist of 13 members who represent each four-year university and the chairpersons of the assembly and senate standing committees with jurisdiction over universities.

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.

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

3. Requires institutions to describe free expression policies and rules in freshman orientation programs.

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

SB250,1 Section 1. 36.02 of the statutes is created to read:

SB250,2,3 36.02 Campus Free Speech Act. (1) Legislative findings. The legislature finds all of the following:

SB250,2,5 (a) Article I, section 3, of the Wisconsin Constitution recognizes the right to speak freely and prohibits laws abridging the liberty of speech.

SB250,2,7 (b) The system has historically embraced a commitment to freedom of expression in policy.

SB250,3,3 (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.

SB250,3,12 (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.

SB250,3,15 (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.

SB250,3,17 (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.

SB250,3,18 (2) Short title. This section shall be known as the “Campus Free Speech Act.”

SB250,3,19 (3) Definitions. In this section:

SB250,3,20 (a) “Institution” means a college campus or university.

SB250,4,2 (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.

SB250,4,7 (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.

SB250,4,13 (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.

SB250,4,17 (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:

SB250,4,22 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.

SB250,4,25 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.

SB250,5,10 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.

SB250,5,15 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.

SB250,5,17 5. That the campuses of the institution are open to any speaker whom students, student groups, or members of the faculty have invited.

SB250,5,19 6. That the public areas of institutions are public forums and open on the same terms to any speaker.

SB250,5,23 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.

SB250,5,25 (b) Discipline. The policy required under par. (a) shall satisfy all of the following:

SB250,6,4 1. Include a range of disciplinary sanctions for anyone under the jurisdiction of the institution who engages in violent, abusive, indecent, profane, boisterous, obscene, unreasonably loud, or other disorderly conduct that interferes with the free expression of others.

SB250,6,7 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:

SB250,6,8 a. The right to receive advanced written notice of the charges.

SB250,6,9 b. The right to review the evidence in support of the charges.

SB250,6,10 c. The right to confront witnesses against them.

SB250,6,11 d. The right to present a defense.

SB250,6,12 e. The right to call witnesses.

SB250,6,13 f. A decision by an impartial arbiter or panel.

SB250,6,14 g. The right of appeal.

SB250,6,16 h. The right to active assistance of counsel, if suspension for longer than 9 days or expulsion are potential penalties.

SB250,6,19 3. Require suspension for a minimum of one semester or expulsion of any student who has twice been found responsible for interfering with the expressive rights of others.

SB250,6,25 (c) Inconsistent policies and rules. The policy required under par. (a) supersedes and nullifies any prior provisions in the policies and rules of the Board of Regents or an institution that restrict speech on campus and are, therefore, inconsistent with the policy. The Board of Regents and each institution shall remove or revise any such provisions in its policies and rules to ensure compatibility with the the policy required under par. (a).

SB250,7,6 (5) Council on free expression. (a) The Board of Regents shall create a single council on free expression consisting of no less than 15 members. Thirteen of the members shall each represent one of the universities of the system and 2 of the members shall be the chairpersons of the assembly and senate standing committees having jurisdiction over universities as determined by the speaker of the assembly and the president of the senate.

SB250,7,10 (b) Annually no later than September 1, the council shall submit to the Board of Regents, the governor, and the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under s. 13.172 (3), a report that includes all of the following:

SB250,7,12 1. A description of any barriers to or disruptions of free expression within institutions.

SB250,7,14 2. A description of the administrative handling and discipline relating to disruptions or barriers described in subd. 1.

SB250,7,17 3. A description of substantial difficulties, controversies, or successes in maintaining a posture of administrative and institutional neutrality with regard to political or social issues.

SB250,7,19 4. Any assessments, criticisms, commendations, or recommendations the council sees fit to include in the report.

SB250,7,21 (c) The Board of Regents shall make the report required under par. (b) available to the public on the system's Internet site.

SB250,7,24 (6) Freshman orientation. Each institution shall include in freshman orientation programs a section describing to all students the policies and rules regarding free expression consistent with this section.

SB250,8,2 (7) Rules. The Board of Regents may promulgate rules to further the purposes of the policy required under sub. (4) (a).

SB250,8,4 (8) Construction. Nothing in this section shall be construed to prevent institutions from regulating student speech or activity that is prohibited by law.

SB250,8,8 (9) Restriction of student expression. Except as further limited by this section, institutions may restrict student expression only for expressive activity not protected by the First Amendment of the U.S. Constitution, including any of the following:

SB250,8,9 (a) Violations of state or federal law.

SB250,8,10 (b) Expression that a court has deemed unprotected defamation.

SB250,8,11 (c) Peer-on-peer harassment.

SB250,8,12 (d) Quid pro quo sexual harassment.

SB250,8,13 (e) True threats.

SB250,8,15 (f) An unjustifiable invasion of privacy or confidentiality not involving a matter of public concern.

SB250,8,16 (g) An action that unlawfully disrupts the function of an institution.

SB250,8,18 (h) A violation of a reasonable time, place, and manner restriction on expressive activities that is consistent with sub. (4) (a) 3.

SB250,8,21 (10) Enforcement. (a) A person whose expressive rights are violated by a violation of this section or the policy adopted under sub. (4) (a) may bring an action to enjoin the violation of this section or the policy.

SB250,9,2 (b) In an action brought under par. (a), if the court finds that a violation of this subsection occurred, the court shall award injunctive relief for the violation, and, notwithstanding s. 814.04 (1), reasonable attorney fees and costs. The court shall also award the actual damages caused by the violation or $1,000, whichever is greater.

SB250,9,8 (c) A person specified in par. (a) 2. shall bring an action for a violation of this subsection within one year after the date the cause of action accrues. For the purpose of calculating the one-year limitation period, each day that the violation persists or each day that a policy in violation of this subsection remains in effect constitutes a new violation of this subsection and shall be considered a day that the cause of action has accrued.

SB250,2 Section 2. 36.35 (1) of the statutes is amended to read:

SB250,9,13 36.35 (1) Power to suspend; rules. The board may delegate the power to suspend or expel students for misconduct or other cause prescribed by the board. Subject to sub. (4) and s. 36.02 (4) (b), the board shall promulgate rules under ch. 227 governing student conduct and procedures for the administration of violations.

SB250,3 Section 3 . 227.01 (13) (Lo) of the statutes is created to read:

SB250,9,15 227.01 (13) (Lo) Adopts the policy required under s. 36.02 (4) (a).

SB250,9,16 (End)