Campus Free Speech Restoration Act

I 117TH CONGRESS 1ST SESSION H. R. 4007 To amend the Higher Education Act of 1965 to ensure that public institutions of higher education eschew policies that improperly constrain the expres- sive rights of students, and to ensure that private institutions of higher education are transparent about, and responsible for, their chosen speech policies. IN THE HOUSE OF REPRESENTATIVES JUNE 17, 2021 Mr. MURPHY of North Carolina (for himself, Ms. STEFANIK, Mr. STEUBE, Mr. BABIN, Mr. NORMAN, Mr. C. SCOTT FRANKLIN of Florida, Ms. TENNEY, Mr. ARRINGTON, Mr. JOYCE of Pennsylvania, Mr. CARTER of Georgia, Mr. GROTHMAN, Mr. OWENS, Mr. FITZGERALD, Mr. BANKS, Mrs. MILLER-MEEKS, Mr. FITZPATRICK, Mr. TIFFANY, Mrs. CAMMACK, Mr. JACKSON, Mr. BUDD, Ms. LETLOW, Mr. MANN, and Mr. JORDAN) introduced the following bill; which was referred to the Committee on Education and Labor A BILL To amend the Higher Education Act of 1965 to ensure that public institutions of higher education eschew poli- cies that improperly constrain the expressive rights of students, and to ensure that private institutions of higher education are transparent about, and responsible for, their chosen speech policies. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 19:09 Jul 19, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H4007.IH H4007 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 4007 IH SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Campus Free Speech 2 Restoration Act’’. 3 SEC. 2. PROTECTION OF STUDENT SPEECH AND ASSOCIA- 4 TION RIGHTS. 5 Section 112(a) of the Higher Education Act of 1965 6 (20 U.S.C. 1011a(a)) is amended— 7 (1) by redesignating paragraph (2) as para- 8 graph (3); and 9 (2) by inserting after paragraph (1) the fol- 10 lowing: 11 ‘‘(2) It is the sense of Congress that— 12 ‘‘(A) every individual should be free to profess, 13 and to maintain, the opinion of such individual in 14 matters of religion or philosophy, and that pro- 15 fessing or maintaining such opinion should in no 16 way diminish, enlarge, or affect the civil liberties or 17 rights of such individual on the campus of an insti- 18 tution of higher education; 19 ‘‘(B) no public institution of higher education 20 directly or indirectly receiving financial assistance 21 under this Act should limit religious expression, free 22 expression, or any other rights provided under the 23 First Amendment to the Constitution of the United 24 States; 25 VerDate Sep 11 2014 19:09 Jul 19, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H4007.IH H4007 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 4007 IH ‘‘(C) free speech zones and restrictive speech 1 codes are inherently at odds with the freedom of 2 speech guaranteed by the First Amendment to the 3 Constitution of the United States; 4 ‘‘(D) bias reporting systems are susceptible to 5 abuses that may put them at odds with the freedom 6 of speech guaranteed by the First Amendment to the 7 Constitution of the United States; and 8 ‘‘(E) no public institution of higher education 9 directly or indirectly receiving financial assistance 10 under this Act should restrict the speech of such in- 11 stitution’s students through improperly restrictive 12 zones, codes, or bias reporting systems.’’. 13 SEC. 3. CAMPUS SPEECH POLICIES AT INSTITUTIONS OF 14 HIGHER EDUCATION. 15 Title IV of the Higher Education Act of 1965 (20 16 U.S.C. 1070 et seq.) is amended— 17 (1) in section 487(a), by adding at the end the 18 following: 19 ‘‘(30)(A) In the case of a public institution 20 (other than an institution described in section 21 494B(b)(4)), the institution will comply with the ex- 22 pressive activity protections described in section 23 494B. 24 VerDate Sep 11 2014 19:09 Jul 19, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H4007.IH H4007 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 4007 IH ‘‘(B) In the case of a private institution (other 1 than an institution described in section 494C(e)), 2 the institution will comply with the expressive activ- 3 ity requirements described in section 494C.’’; and 4 (2) in part G, by adding at the end the fol- 5 lowing: 6 ‘‘SEC. 494B. CAMPUS SPEECH POLICIES AT PUBLIC UNIVER- 7 SITIES. 8 ‘‘(a) DEFINITION OF EXPRESSIVE ACTIVITIES.— 9 ‘‘(1) IN GENERAL.—In this section, the term 10 ‘expressive activity’ includes— 11 ‘‘(A) peacefully assembling, protesting, 12 speaking, or listening; 13 ‘‘(B) distributing literature; 14 ‘‘(C) carrying a sign; 15 ‘‘(D) circulating a petition; or 16 ‘‘(E) other expressive rights guaranteed 17 under the First Amendment to the Constitution 18 of the United States, including religious rights. 19 ‘‘(2) EXCLUSIONS.—In this section, the term 20 ‘expressive activity’ does not include unprotected 21 speech (as defined by the precedents of the Supreme 22 Court of the United States). 23 ‘‘(b) EXPRESSIVE ACTIVITIES AT AN INSTITUTION.— 24 VerDate Sep 11 2014 19:09 Jul 19, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H4007.IH H4007 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 4007 IH ‘‘(1) IN GENERAL.—Each public institution of 1 higher education participating in a program under 2 this title may not prohibit, subject to paragraph (2), 3 a person from freely engaging in noncommercial ex- 4 pressive activity in a generally accessible area on the 5 institution’s campus if the person’s conduct is law- 6 ful. 7 ‘‘(2) RESTRICTIONS.—An institution of higher 8 education described in paragraph (1) may not main- 9 tain or enforce time, place, or manner restrictions on 10 an expressive activity in a generally accessible area 11 of the institution’s campus unless the restriction— 12 ‘‘(A) is necessary to achieve a compelling 13 governmental interest; 14 ‘‘(B) is the least restrictive means of fur- 15 thering that compelling governmental interest; 16 ‘‘(C) is based on published, content-neu- 17 tral, and viewpoint-neutral criteria; 18 ‘‘(D) leaves open ample alternative chan- 19 nels for communication; and 20 ‘‘(E) provides for spontaneous assembly 21 and distribution of literature. 22 ‘‘(3) APPLICATION.—The protections provided 23 under paragraph (1) do not apply to expressive ac- 24 VerDate Sep 11 2014 19:09 Jul 19, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H4007.IH H4007 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 4007 IH tivity in an area on an institution’s campus that is 1 not a generally accessible area. 2 ‘‘(4) NONAPPLICATION TO SERVICE ACAD- 3 EMIES.—This section shall not apply to an institu- 4 tion of higher education whose primary purpose is 5 the training of individuals for the military services 6 of the United States, or the merchant marine. 7 ‘‘(c) CAUSES OF ACTION.— 8 ‘‘(1) AUTHORIZATION.—The following persons 9 may bring an action in a Federal court of competent 10 jurisdiction to enjoin a violation of subsection (b) or 11 to recover compensatory damages, reasonable court 12 costs, or reasonable attorney fees: 13 ‘‘(A) The Attorney General. 14 ‘‘(B) A person claiming that the person’s 15 expressive activity rights, as described in sub- 16 section (b)(1), were violated. 17 ‘‘(2) ACTIONS.—Notwithstanding any other 18 provision of law, in an action brought under this sec- 19 tion, the Federal court shall decide de novo all rel- 20 evant questions of fact and law, including the inter- 21 pretation of constitutional, statutory, and regulatory 22 provisions, unless the parties stipulate otherwise. In 23 an action brought under this subsection, if the court 24 finds a violation of subsection (b), the court— 25 VerDate Sep 11 2014 19:09 Jul 19, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H4007.IH H4007 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 4007 IH ‘‘(A) shall— 1 ‘‘(i) enjoin the violation; and 2 ‘‘(ii) if a person whose expressive ac- 3 tivity rights were violated brought the ac- 4 tion, award the person— 5 ‘‘(I) not less than $500 for an 6 initial violation; and 7 ‘‘(II) if the person notifies the in- 8 stitution of the violation, $50 for each 9 day the violation continues after the 10 notification if the institution did not 11 act to discontinue the cause of the 12 violation; and 13 ‘‘(B) may award a prevailing plaintiff— 14 ‘‘(i) compensatory damages; 15 ‘‘(ii) reasonable court costs; or 16 ‘‘(iii) reasonable attorney fees. 17 ‘‘(3) BASIS FOR ENACTMENT.—This subsection 18 is enacted as an exercise of the enforcement power 19 of the Congress under section 5 of the Fourteenth 20 Amendment to the Constitution to protect expressive 21 activities. 22 ‘‘(d) STATUTE OF LIMITATIONS.— 23 ‘‘(1) IN GENERAL.—Except as provided in para- 24 graph (3), an action under subsection (c) may not 25 VerDate Sep 11 2014 19:09 Jul 19, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H4007.IH H4007 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 4007 IH be brought later than 1 year after the date of the 1 violation. 2 ‘‘(2) CONTINUING VIOLATION.—Each day that 3 a violation of subsection (b) continues after an ini- 4 tial violation of subsection (b), and each day that an 5 institution’s policy in violation of subsection (b) re- 6 mains in effect, shall constitute a continuing viola- 7 tion of subsection (b). 8 ‘‘(3) EXTENSION.—For a continuing violation 9 described in paragraph (2), the limitation described 10 in paragraph (1) shall extend to 1 year after the 11 date on which the most recent violation occurs. 12 ‘‘(e) FEDERAL REVIEW OF SPEECH POLICIES.— 13 ‘‘(1) NO ELIGIBILITY FOR FUNDS.— 14 ‘‘(A) IN GENERAL.—No public institution 15 of higher education shall be eligible to receive 16 funds under this Act, including participation in 17 any program under this title, if the Secretary 18 determines that the institution— 19 ‘‘(i) maintains a policy that infringes 20 upon the expressive rights of students 21 under the First Amendment to the Con- 22 stitution of the United States; or 23 ‘‘(ii) maintains or enforces time, 24 place, or manner restrictions on an expres- 25 VerDate Sep 11 2014 19:09 Jul 19, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H4007.IH H4007 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 4007 IH sive activity in a generally accessible area 1 of the institution’s campus that do not 2 comply with subparagraphs (A) through 3 (E) of subsection (b)(2). 4 ‘‘(B) PROHIBITION.—The Secretary may 5 not conduct an investigation for purposes of 6 making a determination under subparagraph 7 (A) with respect to an institution of higher edu- 8 cation, unless such an investigation is con- 9 ducted under paragraph (4) with respect to a 10 complaint received under paragraph (2). 11 ‘‘(C) COURT REVIEW.—Notwithstanding 12 any other provision of law, the Secretary’s de- 13 terminations under this subsection shall be re- 14 viewed de novo with respect to all relevant ques- 15 tions of fact and law, including the interpreta- 16 tion of constitutional, statutory, and regulatory 17 provisions, unless the parties stipulate other- 18 wise. 19 ‘‘(2) DESIGNATION OF AN EMPLOYEE TO RE- 20 CEIVE COMPLAINTS.—The Secretary shall designate 21 an employee in the Office of Postsecondary Edu- 22 cation of the Department to receive complaints 23 (whether electronically or by mail) from students or 24 student organizations at a given public institution of 25 VerDate Sep 11 2014 19:09 Jul 19, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H4007.IH H4007 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 4007 IH higher education, or from any other person or orga- 1 nization, regarding policies at the institution that 2 meet the description of clause (i) or (ii) of para- 3 graph (1)(A). 4 ‘‘(3) COMPLAINT.—A complaint submitted 5 under subparagraph (2)— 6 ‘‘(A) shall include the provision of the in- 7 stitution’s policy the complainant believes meets 8 the description of clause (i) or (ii) of paragraph 9 (1)(A), along with any evidence regarding the 10 operation and enforcement of such policy the 11 complainant deems relevant; and 12 ‘‘(B) may include an argument and any 13 other supplemental information as to why the 14 policy in question meets such description. 15 ‘‘(4) SYSTEM OF REVIEW.— 16 ‘‘(A) FIRST STAGE REVIEW.— 17 ‘‘(i) REQUEST FOR RESPONSE.—Not 18 later than 7 days after the date of receipt 19 of a complaint under paragraph (2), the 20 Secretary shall review the complaint and 21 request a response to the complaint from 22 the institution. 23 ‘‘(ii) INSTITUTION RESPONSE.—Not 24 later than 30 days after the date the Sec- 25 VerDate Sep 11 2014 19:09 Jul 19, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H4007.IH H4007 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 4007 IH retary requests a response under clause (i), 1 the institution shall— 2 ‘‘(I) certify to the Secretary that 3 the institution has entirely withdrawn 4 the policy that occasioned the com- 5 plaint; 6 ‘‘(II) submit a revised policy for 7 review by the Secretary; or 8 ‘‘(III) submit a defense of the 9 policy that occasioned the complaint. 10 ‘‘(iii) AVAILABILITY TO COMPLAIN- 11 ANT.— 12 ‘‘(I) IN GENERAL.—Not later 13 than 7 days after the date of receipt 14 of a revised policy or defense of the 15 original policy as submitted by the in- 16 stitution pursuant to clause (ii), the 17 Secretary shall make available to the 18 complainant a copy of such revised 19 policy or defense. 20 ‘‘(II) RESPONSE BY COMPLAIN- 21 ANT.—Not later than 60 days after 22 the date of receipt of a revised policy 23 or defense of the original policy under 24 subclause (I), the complainant may 25 VerDate Sep 11 2014 19:09 Jul 19, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H4007.IH H4007 pamtmann on DSKBC07HB2PROD with BILLS 12 •HR 4007 IH submit to the Secretary a response to 1 the revised policy or defense of the 2 original policy. 3 ‘‘(III) SUBMISSION TO THE IN- 4 STITUTION OF RESPONSE.—Not later 5 than 7 days after the date of receipt 6 of a response under subclause (II), 7 the Secretary shall submit to the in- 8 stitution a copy of such response. 9 ‘‘(iv) DETERMINATIONS.—If the insti- 10 tution declines to entirely withdraw the 11 policy that occasioned the complaint and 12 either submits a revised policy for review 13 or submits a defense of the policy that oc- 14 casioned the complaint, the Secretary shall, 15 not later than 60 days after the date of the 16 deadline for a response by the complaint as 17 described in clause (iii)(II), make one of 18 the following determinations: 19 ‘‘(I) Determine that the com- 20 plaint in question has insufficient 21 merit to proceed to Second Stage Re- 22 view described in subparagraph (B). 23 ‘‘(II) Determine that the com- 24 plaint in question has suffici [Text truncated for display. 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