I 116TH CONGRESS 1ST SESSION H. R. 3128 To amend the Higher Education Act of 1965 to uphold freedom of association protections, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JUNE 5, 2019 Mr. GALLEGO (for himself, Ms. STEFANIK, Mr. STIVERS, Mrs. MURPHY, Mrs. BROOKS of Indiana, Mr. GOTTHEIMER, Mr. SHIMKUS, Mr. CLEAVER, Mrs. KIRKPATRICK, Ms. KENDRA S. HORN of Oklahoma, Mrs. LAW- RENCE, Ms. FUDGE, Mr. BYRNE, and Mr. HUDSON) introduced the fol- lowing bill; which was referred to the Committee on Education and Labor A BILL To amend the Higher Education Act of 1965 to uphold freedom of association protections, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Collegiate Freedom 4 of Association Act’’. 5 SEC. 2. FINDINGS AND PURPOSES. 6 (a) FINDINGS.—Congress finds the following: 7 (1) Single-sex social organizations, including so- 8 rorities, fraternities, and private social clubs, have 9 VerDate Sep 11 2014 04:46 Jun 13, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3128.IH H3128 kjohnson on DSK79L0C42 with BILLS 2 •HR 3128 IH existed at institutions of higher education for over 1 200 years, where they have played, and should con- 2 tinue to play, unique roles in the development of 3 young women and men by creating sisterhoods and 4 brotherhoods that foster leadership, promote aca- 5 demic achievement, and encourage civic and campus 6 involvement through philanthropic activities. 7 (2) The freedom of association—that is, the 8 freedom of joining, assembling, and residing with 9 others—is protected under the First and Fourteenth 10 Amendments to the Constitution, and allows individ- 11 uals to create spaces that are safe, welcoming, em- 12 powering, enabling, uninhibited, and free. 13 (3) Single-sex social sororities, fraternities, and 14 private social clubs meet the requirements for inti- 15 mate and expressive associations protected by the 16 freedom of association because they are small and 17 selective, are bound together by friendship, common 18 interests, and common purpose, and create safe and 19 empowering spaces for their members. 20 (4) Some institutions of higher education, which 21 stand in positions of power and authority over their 22 students, have increasingly sought to eliminate or re- 23 strict access to single-sex social organizations, which 24 are designed to nurture, lift, and empower students. 25 VerDate Sep 11 2014 04:46 Jun 13, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3128.IH H3128 kjohnson on DSK79L0C42 with BILLS 3 •HR 3128 IH (5) While the history of equal access in higher 1 education includes discriminatory actions taken on 2 the basis of race, religion, national origin, and sex 3 by students, faculty, staff, and social organizations, 4 many members of these same groups have taken, 5 and continue to take actions to make the higher edu- 6 cation community more open and inclusive to all. 7 (6) While sex discrimination remains a serious 8 problem in our society, allowing institutions of high- 9 er education to sanction members of sororities, fra- 10 ternities, and private social clubs based solely on the 11 single-sex status of the organization that the student 12 belongs to will not solve these problems, is counter- 13 productive, and violates an individual’s constitutional 14 right to freedom of association. 15 (b) PURPOSES.—The purposes of this Act are as fol- 16 lows: 17 (1) Protect any student in a single-sex social 18 organization or any single-sex social organization 19 from any adverse action by an institution of higher 20 education based solely on the membership practice of 21 such organization of limiting membership to only in- 22 dividuals of one sex. 23 (2) Ensure any student in a single-sex social or- 24 ganization or any single-sex social organization is 25 VerDate Sep 11 2014 04:46 Jun 13, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3128.IH H3128 kjohnson on DSK79L0C42 with BILLS 4 •HR 3128 IH treated equitably in comparison to students at an in- 1 stitution of higher education who do not participate 2 in single-sex social organizations, or other social or- 3 ganizations at an institution of higher education 4 that are not single-sex. 5 (3) Protect the rights of students to freely asso- 6 ciate with and participate in social organizations, in- 7 cluding single-sex social organizations. 8 SEC. 3. FREEDOM OF ASSOCIATION PROTECTIONS FOR 9 STUDENTS IN SOCIAL ORGANIZATIONS. 10 Part B of title I of the Higher Education Act of 1965 11 (20 U.S.C. 1011 et seq.) is amended by adding at the end 12 the following: 13 ‘‘SEC. 124. FREEDOM OF ASSOCIATION PROTECTIONS FOR 14 STUDENTS IN SOCIAL ORGANIZATIONS. 15 ‘‘(a) UPHOLDING FREEDOM OF ASSOCIATION PRO- 16 TECTIONS.—Any student (or group of students) enrolled 17 in an institution of higher education shall— 18 ‘‘(1) have a right to form or apply to join any 19 social organization, including any single-sex social 20 organization; and 21 ‘‘(2) if selected for membership by any social 22 organization, have a right to join such social organi- 23 zation and participate in such social organization. 24 VerDate Sep 11 2014 04:46 Jun 13, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3128.IH H3128 kjohnson on DSK79L0C42 with BILLS 5 •HR 3128 IH ‘‘(b) NON-RETALIATION AGAINST MEMBERS OF SIN- 1 GLE-SEX SOCIAL ORGANIZATIONS.—An institution of 2 higher education that receives funds under this Act shall 3 not— 4 ‘‘(1) take any action to require or coerce a stu- 5 dent or social organization to waive the rights of the 6 student or organization, respectively, under this sec- 7 tion; 8 ‘‘(2) take any adverse action against a student 9 who is a member of a single-sex social organization, 10 or a single-sex social organization, based solely on 11 the membership practice of such organization of lim- 12 iting membership to only individuals of one sex; or 13 ‘‘(3) impose a recruitment restriction (including 14 a recruitment restriction relating to the schedule for 15 membership recruitment) on a single-sex social orga- 16 nization recognized by the institution, which is not 17 imposed upon other student organizations by the in- 18 stitution, unless the organization and the institution 19 have entered into a mutually agreed-upon written 20 agreement that allows the institution to impose such 21 restriction. 22 ‘‘(c) RULES OF CONSTRUCTION.—Nothing in this 23 section shall— 24 VerDate Sep 11 2014 04:46 Jun 13, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3128.IH H3128 kjohnson on DSK79L0C42 with BILLS 6 •HR 3128 IH ‘‘(1) require an institution of higher education 1 to officially recognize, or enter into a mutually 2 agreed-upon written agreement with, a social organi- 3 zation (such as a social organization whose purpose 4 is incompatible with the religious or cultural mission 5 of the institution of higher education); 6 ‘‘(2) prohibit an institution of higher education 7 from taking an adverse action, which is not based 8 solely on the membership practice of a social organi- 9 zation of limiting membership to only individuals of 10 one sex, against a student who joins such social or- 11 ganization or such social organization— 12 ‘‘(A) whose purpose is incompatible with 13 the religious or cultural mission of the institu- 14 tion of higher education; or 15 ‘‘(B) for another reason (such as academic 16 or nonacademic misconduct); 17 ‘‘(3) subject to subsection (b)(3), prevent a so- 18 cial organization from regulating its own member- 19 ship; 20 ‘‘(4) inhibit the ability of the faculty of an insti- 21 tution of higher education to express an opinion (ei- 22 ther individually or collectively) on a single-sex social 23 organization, or otherwise inhibit the academic free- 24 VerDate Sep 11 2014 04:46 Jun 13, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3128.IH H3128 kjohnson on DSK79L0C42 with BILLS 7 •HR 3128 IH dom of such faculty to research, write, or publish 1 material on such an organization; or 2 ‘‘(5) create enforceable rights against a social 3 organization or against an institution of higher edu- 4 cation due to the decision of such social organization 5 to deny membership to an individual student. 6 ‘‘(d) DEFINITIONS.—In this section: 7 ‘‘(1) ADVERSE ACTION.—The term ‘adverse ac- 8 tion’ includes the following with respect to a single- 9 sex social organization or a member of such organi- 10 zation: 11 ‘‘(A) Expulsion, suspension, probation, 12 censure, condemnation, reprimand, or any other 13 disciplinary, coercive, or sanction taken by an 14 institution of higher education or administrative 15 unit of such institution. 16 ‘‘(B) An oral or written warning with re- 17 spect to an action described in subparagraph 18 (A) made by an official of an institution of 19 higher education acting in the official capacity 20 of the official. 21 ‘‘(C) An action to deny participation in 22 any education program or activity, including the 23 withholding of any rights, privileges, or oppor- 24 tunities. 25 VerDate Sep 11 2014 04:46 Jun 13, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3128.IH H3128 kjohnson on DSK79L0C42 with BILLS 8 •HR 3128 IH ‘‘(D) An action to withhold, in whole or in 1 part, any financial assistance (including schol- 2 arships and on campus employment), or deny- 3 ing the opportunity to apply for financial assist- 4 ance, a scholarship, a graduate fellowship, or 5 on-campus employment. 6 ‘‘(E) An action to deny or restrict access 7 to on-campus housing. 8 ‘‘(F) An action to deny any certification, 9 endorsement, or letter of recommendation that 10 may be required by a student’s current or fu- 11 ture employer, a government agency, a licensing 12 board, an institution of higher education, a 13 scholarship program, or a graduate fellowship 14 to which the student seeks to apply. 15 ‘‘(G) An action to deny participation in 16 any sports team, club, or other student organi- 17 zation, including a denial of any leadership po- 18 sition in any sports team, club, or other student 19 organization. 20 ‘‘(H) An action to withdraw official rec- 21 ognition by an institution of higher education. 22 ‘‘(I) An action to require any student to 23 certify that such student is not a member of a 24 single-sex social organization or to disclose the 25 VerDate Sep 11 2014 04:46 Jun 13, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3128.IH H3128 kjohnson on DSK79L0C42 with BILLS 9 •HR 3128 IH student’s membership in a single-sex social or- 1 ganization. 2 ‘‘(J) An action by an institution of higher 3 education to interject its own criteria into the 4 membership practices of the organization in any 5 manner that conflicts with the rights of such 6 organization under title IX of the Education 7 Amendments of 1972 (20 U.S.C. 1681 et seq.) 8 or this section. 9 ‘‘(K) An action to impose any operational 10 policy or restriction that is in violation of this 11 section. 12 ‘‘(2) SINGLE-SEX SOCIAL ORGANIZATION.—The 13 term ‘single-sex social organization’ means— 14 ‘‘(A) a social fraternity or sorority that is 15 an organization described in section 501(c) of 16 the Internal Revenue Code of 1986 which is ex- 17 empt from taxation under section 501(a) of 18 such Code, the active membership of which con- 19 sists primarily of students in attendance at an 20 institution of higher education; 21 ‘‘(B) the Young Men’s Christian Associa- 22 tion, Young Women’s Christian Association, 23 Girl Scouts, Boy Scouts, Camp Fire Girls, and 24 voluntary youth service organizations which are 25 VerDate Sep 11 2014 04:46 Jun 13, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3128.IH H3128 kjohnson on DSK79L0C42 with BILLS 10 •HR 3128 IH so exempt, the membership of which has tradi- 1 tionally been limited to persons of one sex and 2 principally to persons of less than nineteen 3 years of age; or 4 ‘‘(C) a single-sex private social club (in- 5 cluding an independent organization located off- 6 campus) that consists primarily of students or 7 alumni of an institution of higher education.’’. 8 Æ VerDate Sep 11 2014 04:46 Jun 13, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\H3128.IH H3128 kjohnson on DSK79L0C42 with BILLS