Campus Freedoms Act

Introduction

Public universities increasingly have replaced the foundational principles of freedom of speech, freedom of religion, freedom of assembly, and freedom of association with coerced conformity to diversity, social justice, sustainability, and related radical ideologies. Public universities thereby abandon the principles that sustain intellectual freedom and make possible a system of higher education whose members dedicate themselves to the joint search for truth. They also abandon the First Amendment rights which public universities, as representatives of the government, are bound to maintain. The public universities also endanger America’s system of free republican government by educating a generation of Americans either to suppress their fellows’ freedom or to submit to losing their own freedom.

Our model bill requires public universities to guarantee a wide range of First Amendment freedoms (Section A), by officially dedicating them to sustain these freedoms (Subsection I), and by enumerating protections to freedom of speech (Subsection II), freedom of assembly (Subsection III), freedom of religion (Subsection IV), freedom of association (Subsection V), freedom for student organizations (Subsection VI), and freedom from intimidation (Subsection VII), while allowing for narrowly-tailored restrictions to achieve significant institutional interests (Subsection VIII). It reinforces these provisions by providing for disciplinary sanctions for their violation (Section B) and by requiring the public universities to publicize both the provisions of this law and violations of the law by anyone under their jurisdiction (Section C).

Higher education administrations cannot be trusted to enforce this act, unless 1) an independent official is present on campus to enforce compliance; and 2) state policymakers can threaten credible budgetary sanctions for noncompliance. Proper enforcement of this model bill therefore requires the passage of the Ombudsman Act and the College Finances Act.

Model Legislative Text

Section A [“Campus Freedoms Charter”]

The {Board of Regents} of the {State} public university system, each institution of higher education that receives state funding, and each school, office, and department within each institution of higher education that receives state funding, shall develop and adopt a policy on campus freedoms that states, at least, the following:

Subsection I [“Higher Education Dedication to First Amendment Principles”]
  1. Each institution of higher education, and each administrative component within each institution of higher education, shall affirm and guarantee that the primary function of each institution of higher education, and each administrative component within each institution of higher education, is to practice, or support the practice of, discovery, improvement, transmission, and dissemination of knowledge by means of research, teaching, discussion, and debate. To fulfill this function, each institution of higher education, and each administrative component within each institution of higher education, shall affirm and guarantee that it will strive to ensure the fullest degree of intellectual freedom and free expression. 
  2. Each institution of higher education, and each administrative component within each institution of higher education, shall affirm and guarantee that it is not the proper role of any institution of higher education, or any administrative component within each institution of higher education, to shield individuals from speech protected by the First Amendment, including, without limitation, ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.
  3. Each institution of higher education, and each administrative component within each institution of higher education, shall affirm and guarantee that it is not the proper role of any institution of higher education, or any administrative component within each institution of higher education, to limit freedom of speech, freedom of religion, freedom of association, or freedom of assembly.
Subsection II [“Freedom of Speech”]
  1. Each institution of higher education, and each administrative component within each institution of higher education, shall affirm and guarantee that it will take no action to limit, infringe, or abrogate First Amendment rights in any way by policies to promote concepts or institutions such as “removing bias,” “preferred pronouns,” “safety,” “health,” “protecting from harm,” or “safe spaces.”
  2. Each institution of higher education, and each administrative component within each institution of higher education, shall affirm and guarantee that it will not record, sanction, educate, mediate, assess, or take any other action to respond to any incident of “bias,” which consists of any expressed judgment on any policy position, or any expressed judgment on the characteristics of any individual or community based upon actual or perceived background or identity including: age, color, disability, gender identity or expression, marital status, national origin, race, religion, sex, sexual orientation, or veteran status.
  3. Each institution of higher education, and each administrative component within each institution of higher education, shall affirm and guarantee that it will define “safety,” “harm,” and “health” to involve exclusively physical matters, not emotional or mental ones.
  4. Each institution of higher education, and each administrative component within each institution of higher education, shall affirm and guarantee the freedom of students and faculty to discuss any problem that presents itself, as the First Amendment permits and within the limits of narrowly tailored viewpoint- and content-neutral restrictions on time, place, and manner of expression that are necessary to achieve a significant institutional interest, provided that these restrictions are clear, in writing, and provide ample alternative means of expression.
  5. Each institution of higher education, and each administrative component within each institution of higher education, shall affirm and guarantee that access to campus for purposes of free speech and expression shall be consistent with First Amendment jurisprudence regarding traditional public forums, designated public forums, and nonpublic forums, subject to reasonable time, place, and manner restrictions.
  6. Each institution of higher education, and each administrative component within each institution of higher education, shall affirm and guarantee that invited speakers shall possess the right to speak and to be heard.
Subsection III [“Freedom of Assembly”]
  1. Each institution of higher education, and each administrative component within each institution of higher education, shall affirm and guarantee the freedom of students and faculty to assemble and engage in spontaneous expressive activity as long as such activity is lawful and does not materially and substantially disrupt the functioning of the institution.
Subsection IV [“Freedom of Religion”]
  1. Each institution of higher education, and each administrative component within each institution of higher education, shall affirm and guarantee that students, faculty, and staff possess the right of free exercise of religion.
  2. Each institution of higher education, and each administrative component within each institution of higher education, shall affirm and guarantee that it will not induce or compel students, faculty, or staff to violate either the tenets of their religion, their sincerely held religious beliefs, or their sincerely held moral or ethical beliefs.
  3. Each institution of higher education, and each administrative component within each institution of higher education, shall affirm and guarantee that it will presumptively take as genuine any claim by students, faculty, or staff to sincerely held religious, moral, or ethical beliefs, that it will seek to make a reasonable accommodation for all religious, moral, or ethical beliefs, that it will establish a written procedure to govern when, why, and how it will challenge an individual claim to possess a sincerely held religious, moral, or ethical belief, and that it shall not discriminate against any group or individual when it applies this procedure.
Subsection V [“Freedom of Association”]
  1. Each institution of higher education, and each administrative component within each institution of higher education, shall affirm and guarantee that students, faculty, and staff possess the right of freedom of association, free from interference by institutional mandates for diversity, inclusion, or equity concerning race, religion, class, sex, gender, gender preference, or gender identity.
Subsection VI [“Student Organizations”]
  1. Each institution of higher education, and each administrative component within each institution of higher education, shall affirm and guarantee that student organizations, especially religious ones, shall possess the right to determine eligibility for membership and qualifications for positions of leadership, free from interference by institutional mandates for diversity, inclusion, or equity concerning race, religion, class, sex, gender, gender preference, or gender identity.
  2. Each institution of higher education, and each administrative component within each institution of higher education, shall affirm and guarantee that student organizations shall possess immunity from security fees on the basis of the content of speech, including for events the content of which the university deems “controversial” or otherwise requiring extra security.
Subsection VII [“Freedom from Intimidation”]
  1. Each institution of higher education, and each administrative component within each institution of higher education, shall affirm and guarantee that everyone on campus, whether a member of the community, an invited speaker, or any citizen, shall possess the right to rigorous and effective defense of free speech against intimidation, threats of violence, actual violence, and reprisals; where “intimidation” is defined as “the causing of a reasonable apprehension of injury to a person or to the person’s spouse, de facto partner, child or dependent, or of violence or damage to any person or property.”
Subsection VIII [“Narrowly Tailored Restrictions”]
  1. Each institution of higher education, and each administrative component within each institution of higher education, may authorize narrowly tailored viewpoint- and content-neutral restrictions on time, place, and manner of expression that are consistent with the above subsections and that are necessary to achieve a significant institutional interest, provided that these restrictions are clear, published, and provide ample alternative means of expression.
  2. “Significant institutional interests” shall include all forms of legitimate academic authority exercised in the service of intellectual freedom, including maintenance of the authority of an instructor to channel, permit, or disallow students’ speech in the classroom so as to make possible extended and civil intellectual inquiry.
Section B [“Disciplinary Sanctions”]

Each institution of higher education, and each administrative component within each institution of higher education, shall implement a range of disciplinary sanctions for anyone under its jurisdiction who substantially interferes with the protected freedoms of others enumerated in Section A, including protests and demonstrations that infringe upon the rights of others to engage in and listen to expressive activity when the expressive activity has been scheduled pursuant to this policy or is located in a nonpublic forum.

Section C [“Public Information”]
  1. Each institution of higher education shall inform all students and employees of the protections afforded to them by the Campus Freedoms Act, and of the policies it has developed and adopted to put the Campus Freedoms Act into practice; the institution shall post this information prominently on its Internet website, include it in information given to new employees, and provide it to each student during New Student Orientation. The information posted on the institution’s Internet website must be accessible from the institution’s Internet website home page by use of not more than three links; searchable by keywords and phrases; and accessible to the public without requiring registration or use of a user name, a password, or another user identification.
  2. Each institution of higher education, and each administrative component within each institution of higher education, shall post prominently on its Internet website, and deliver to the {Board of Regents} of the {State} public university system, an annual report of all violations of the Campus Freedoms Act committed by anyone under its jurisdiction and of all consequent disciplinary sanctions. The information posted on the institution’s Internet website must be accessible from the institution’s Internet website home page by use of not more than three links; searchable by keywords and phrases; and accessible to the public without requiring registration or use of a user name, a password, or another user identification.
Section D [“Severability”]

If any provision of this chapter, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this chapter and the application of its provisions to any other person or circumstance shall not be affected thereby.

Existing State Statutes

Alabama: HB 498 (2019) [Colleges and universities, require public colleges and universities to enact policies protecting freedom of speech on campus]

Arizona: HB 2548 (2016) [Relating to Public Assembly], HB 2615 (2016) [Relating to Postsecondary Education], and HB 2563 (2018) [Relating to Students’ Rights]

Arkansas: SB 156 (2019) [Forming Open and Robust University Minds (FORUM) Act]

California: Cal. Educ. Code § 66301 [Rules of Student Conduct] and Cal. Educ. Code § 94367 [Speech and Other Communication]

Colorado: CRS § 23-5-144 [Students’ right to speak in a public forum]

Florida: Fla. Stat. § 1004.097 [Free expression on campus]

Georgia: SB 339 (2018) [{R}elating to the board of regents and university system, so as to provide for the establishment of free speech policies for institutions of the university system]

Iowa: SF 274 (2018) [Relating to Speech and Expression at Public Institutions of Higher Education]

Kentucky: Ky. Rev. Stat. Ann. § 158.183 [Prohibited acts by students – Rights of student] and Ky. Rev. Stat. Ann. § 164.348 [Campus free speech protection]

Louisiana: SB 364 (2018) [{R}elative to free expression on college campuses]

Missouri: Mo. Rev. Stat. § 173.1550 [Citation of law — expressive activities protected]

Montana: HB 218 (2021) [An Act Generally Revising Laws Related to Expression on Campuses of Public Postsecondary Institutions] and HB 349 (2021) [An Act Generally Revising Laws Related to Freedom of Association and Freedom of Speech on Campuses of Public Postsecondary Institutions]

North Carolina: HB 527 (2017) [An Act to Restore and Preserve Free Speech on the Campuses of the Constituent Institutions of the University of North Carolina]

North Dakota: SB 2320 (2019) [{R}elating to free speech at institutions under the control of the state board of higher education] and HB 1503 (2021) [{R}elating to free speech policies of institutions under the control of the state board of higher education]

Ohio: SB 40 (2020) [Forming Open and Robust University Minds Act]

Oklahoma: Okla. Stat. Ann. tit. 70, § 2120 [Protected expressive activities on campus]

South Dakota: HB 1087 (2019) [An Act to promote free speech and intellectual diversity at certain institutions of higher education]

Tennessee: SB 723 (2017) [Campus Free Speech Protection Act]

Texas: Tex. Educ. Code § 51.9315 [Protected Expression on Campus]

Utah: Utah Code Ann. § 53B-27-2 [Campus Free Expression Act] and Utah HB 159 (2021) [{P}rovisions related to discriminatory harassment and expression]

Virginia: Va. Code Ann. § 23.1-401 [Restrictions on student speech; limitations] and Va. Code Ann. § 23.1-401.1[Constitutionally protected speech; policies, materials, and reports; report]

West Virginia: SB 657 (2021) [Relating to free expression on state institution of higher education campuses]

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