Campus Free Speech Restoration Act

II 116TH CONGRESS 2D SESSION S. 4483 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 SENATE OF THE UNITED STATES AUGUST 6, 2020 Mr. COTTON (for himself, Mr. MCCONNELL, Mrs. LOEFFLER, and Mr. CRAMER) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions 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 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Campus Free Speech 4 Restoration Act’’. 5 VerDate Sep 11 2014 19:12 Aug 26, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4483.IS S4483 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 4483 IS SEC. 2. PROTECTION OF STUDENT SPEECH AND ASSOCIA- 1 TION RIGHTS. 2 Section 112(a) of the Higher Education Act of 1965 3 (20 U.S.C. 1011a(a)) is amended— 4 (1) by redesignating paragraph (2) as para- 5 graph (4); and 6 (2) by inserting after paragraph (1) the fol- 7 lowing: 8 ‘‘(2) It is the sense of Congress that— 9 ‘‘(A) every individual should be free to profess, 10 and to maintain, the opinion of such individual in 11 matters of religion or philosophy, and that pro- 12 fessing or maintaining such opinion should in no 13 way diminish, enlarge, or affect the civil liberties or 14 rights of such individual on the campus of an insti- 15 tution of higher education; and 16 ‘‘(B) no public institution of higher education 17 directly or indirectly receiving financial assistance 18 under this Act should limit religious expression, free 19 expression, or any other rights provided under the 20 First Amendment to the Constitution of the United 21 States. 22 ‘‘(3) It is the sense of Congress that— 23 ‘‘(A) free speech zones and restrictive speech 24 codes are inherently at odds with the freedom of 25 VerDate Sep 11 2014 19:12 Aug 26, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4483.IS S4483 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 4483 IS speech guaranteed by the First Amendment to the 1 Constitution of the United States; 2 ‘‘(B) bias reporting systems are susceptible to 3 abuses that may put them at odds with the freedom 4 of speech guaranteed by the First Amendment to the 5 Constitution of the United States; and 6 ‘‘(C) no public institution of higher education 7 directly or indirectly receiving financial assistance 8 under this Act should restrict the speech of such in- 9 stitution’s students through improperly restrictive 10 zones, codes, or bias reporting systems.’’. 11 SEC. 3. CAMPUS SPEECH POLICIES AT INSTITUTIONS OF 12 HIGHER EDUCATION. 13 Title IV of the Higher Education Act of 1965 (20 14 U.S.C. 1070 et seq.) is amended— 15 (1) in section 487(a), by adding at the end the 16 following: 17 ‘‘(30) In the case of an institution that is a 18 public institution, the institution will comply with 19 the expressive activity protections described in sec- 20 tion 493E.’’; and 21 (2) in part G, by adding at the end the fol- 22 lowing: 23 VerDate Sep 11 2014 19:12 Aug 26, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4483.IS S4483 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 4483 IS ‘‘SEC. 493E. CAMPUS SPEECH POLICIES AT PUBLIC UNIVER- 1 SITIES. 2 ‘‘(a) DEFINITION OF EXPRESSIVE ACTIVITIES.— 3 ‘‘(1) IN GENERAL.—In this section, the term 4 ‘expressive activity’ includes— 5 ‘‘(A) peacefully assembling, protesting, 6 speaking, or listening; 7 ‘‘(B) distributing literature; 8 ‘‘(C) carrying a sign; 9 ‘‘(D) circulating a petition; or 10 ‘‘(E) other expressive rights guaranteed 11 under the First Amendment to the Constitution 12 of the United States. 13 ‘‘(2) EXCLUSIONS.—In this section, the term 14 ‘expressive activity’ does not include unprotected 15 speech (as defined by the precedents of the Supreme 16 Court of the United States). 17 ‘‘(b) EXPRESSIVE ACTIVITIES AT AN INSTITUTION.— 18 ‘‘(1) IN GENERAL.—Each public institution of 19 higher education participating in a program under 20 this title may not prohibit, subject to paragraph (2), 21 a person from freely engaging in noncommercial ex- 22 pressive activity in a generally accessible outdoor 23 area on the institution’s campus if the person’s con- 24 duct is lawful. 25 VerDate Sep 11 2014 19:12 Aug 26, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4483.IS S4483 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 4483 IS ‘‘(2) RESTRICTIONS.—An institution of higher 1 education described in paragraph (1) may not main- 2 tain or enforce time, place, or manner restrictions on 3 an expressive activity in a generally accessible out- 4 door area of the institution’s campus unless the re- 5 striction— 6 ‘‘(A) is necessary to achieve a compelling 7 governmental interest; 8 ‘‘(B) is the least restrictive means of fur- 9 thering that compelling governmental interest; 10 ‘‘(C) is based on published, content-neu- 11 tral, and viewpoint-neutral criteria; 12 ‘‘(D) leaves open ample alternative chan- 13 nels for communication; and 14 ‘‘(E) provides for spontaneous assembly 15 and distribution of literature. 16 ‘‘(3) APPLICATION.—The protections provided 17 under paragraph (1) do not apply to expressive ac- 18 tivity in an area on an institution’s campus that is 19 not a generally accessible outdoor area. 20 ‘‘(4) NONAPPLICATION TO SERVICE ACAD- 21 EMIES.—This section shall not apply to an institu- 22 tion of higher education whose primary purpose is 23 the training of individuals for the military services 24 of the United States, or the merchant marine. 25 VerDate Sep 11 2014 19:12 Aug 26, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4483.IS S4483 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 4483 IS ‘‘(c) CAUSES OF ACTION.— 1 ‘‘(1) AUTHORIZATION.—The following persons 2 may bring an action in a Federal court of competent 3 jurisdiction to enjoin a violation of subsection (b) or 4 to recover compensatory damages, reasonable court 5 costs, or reasonable attorney fees: 6 ‘‘(A) The Attorney General. 7 ‘‘(B) A person claiming that the person’s 8 expressive activity rights, as described in sub- 9 section (b)(1), were violated. 10 ‘‘(2) ACTIONS.—Notwithstanding any other 11 provision of law, in an action brought under this sec- 12 tion, the Federal court shall decide de novo all rel- 13 evant questions of fact and law, including the inter- 14 pretation of constitutional, statutory, and regulatory 15 provisions, unless the parties stipulate otherwise. In 16 an action brought under this subsection, if the court 17 finds a violation of subsection (b), the court— 18 ‘‘(A) shall— 19 ‘‘(i) enjoin the violation; and 20 ‘‘(ii) if a person whose expressive ac- 21 tivity rights were violated brought the ac- 22 tion, award the person— 23 ‘‘(I) not less than $500 for an 24 initial violation; and 25 VerDate Sep 11 2014 19:12 Aug 26, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4483.IS S4483 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 4483 IS ‘‘(II) if the person notifies the in- 1 stitution of the violation, $50 for each 2 day the violation continues after the 3 notification if the institution did not 4 act to discontinue the cause of the 5 violation; and 6 ‘‘(B) may award a prevailing plaintiff— 7 ‘‘(i) compensatory damages; 8 ‘‘(ii) reasonable court costs; or 9 ‘‘(iii) reasonable attorney fees. 10 ‘‘(d) STATUTE OF LIMITATIONS.— 11 ‘‘(1) IN GENERAL.—Except as provided in para- 12 graph (3), an action under subsection (c) may not 13 be brought later than 1 year after the date of the 14 violation. 15 ‘‘(2) CONTINUING VIOLATION.—Each day that 16 a violation of subsection (b) continues after an ini- 17 tial violation of subsection (b), and each day that an 18 institution’s policy in violation of subsection (b) re- 19 mains in effect, shall constitute a continuing viola- 20 tion of subsection (b). 21 ‘‘(3) EXTENSION.—For a continuing violation 22 described in paragraph (2), the limitation described 23 in paragraph (1) shall extend to 1 year after the 24 date on which the most recent violation occurs. 25 VerDate Sep 11 2014 19:12 Aug 26, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4483.IS S4483 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 4483 IS ‘‘(e) FEDERAL REVIEW OF SPEECH POLICIES.— 1 ‘‘(1) NO ELIGIBILITY FOR FUNDS.— 2 ‘‘(A) IN GENERAL.—No public institution 3 of higher education shall be eligible to receive 4 funds under this Act, including participation in 5 any program under this title, if the Secretary 6 determines that the institution— 7 ‘‘(i) maintains a policy that infringes 8 upon the expressive rights of students 9 under the First Amendment to the Con- 10 stitution of the United States; or 11 ‘‘(ii) maintains or enforces time, 12 place, or manner restrictions on an expres- 13 sive activity in a generally accessible out- 14 door area of the institution’s campus that 15 do not comply with subparagraphs (A) 16 through (E) of subsection (b)(2). 17 ‘‘(B) COURT REVIEW.—Notwithstanding 18 any other provision of law, the Secretary’s de- 19 terminations under this subsection shall be re- 20 viewed de novo with respect to all relevant ques- 21 tions of fact and law, including the interpreta- 22 tion of constitutional, statutory, and regulatory 23 provisions, unless the parties stipulate other- 24 wise. 25 VerDate Sep 11 2014 19:12 Aug 26, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4483.IS S4483 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 4483 IS ‘‘(2) DESIGNATION OF AN EMPLOYEE TO RE- 1 CEIVE COMPLAINTS.—The Secretary shall designate 2 an employee in the Office of Postsecondary Edu- 3 cation of the Department to receive complaints from 4 students or student organizations at a given public 5 institution of higher education, or from any other 6 person or organization, regarding policies at the in- 7 stitution— 8 ‘‘(A) that infringe upon the expressive 9 rights of students under the First Amendment 10 to the Constitution of the United States; or 11 ‘‘(B) that maintain or enforce time, place, 12 or manner restrictions on an expressive activity 13 in a generally accessible outdoor area of the in- 14 stitution’s campus that do not comply with sub- 15 paragraphs (A) through (E) of subsection 16 (b)(2). 17 ‘‘(3) COMPLAINT.—A complaint submitted 18 under subparagraph (2)— 19 ‘‘(A) shall include the provision of the in- 20 stitution’s policy the complainant believes either 21 infringes upon the expressive rights of students 22 under the First Amendment to the Constitution 23 of the United States or maintains or enforces 24 time, place, or manner restrictions on an ex- 25 VerDate Sep 11 2014 19:12 Aug 26, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4483.IS S4483 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 4483 IS pressive activity in a generally accessible out- 1 door area of the institution’s campus that does 2 not comply with subparagraphs (A) through (E) 3 of subsection (b)(2), along with any evidence re- 4 garding the operation and enforcement of such 5 policy the complainant deems relevant; and 6 ‘‘(B) may include an argument as to why 7 the policy in question either infringes upon the 8 expressive rights of students under the First 9 Amendment to the Constitution of the United 10 States or maintains or enforces time, place, or 11 manner restrictions on an expressive activity in 12 a generally accessible outdoor area of the insti- 13 tution’s campus that does not comply with sub- 14 paragraphs (A) through (E) of subsection 15 (b)(2). 16 ‘‘(4) SYSTEM OF REVIEW.— 17 ‘‘(A) FIRST STAGE REVIEW.— 18 ‘‘(i) REQUEST FOR RESPONSE.—Not 19 later than 7 days after the date of receipt 20 of a complaint under paragraph (2), the 21 Secretary shall review the complaint and 22 request a response to the complaint from 23 the institution. 24 VerDate Sep 11 2014 19:12 Aug 26, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4483.IS S4483 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 4483 IS ‘‘(ii) INSTITUTION RESPONSE.—Not 1 later than 30 days after the date the Sec- 2 retary requests a response under clause (i), 3 the institution shall— 4 ‘‘(I) certify to the Secretary that 5 the institution has entirely withdrawn 6 the policy that occasioned the com- 7 plaint; 8 ‘‘(II) submit a revised policy for 9 review by the Secretary; or 10 ‘‘(III) submit a defense of the 11 policy that occasioned the complaint. 12 ‘‘(iii) AVAILABILITY TO COMPLAIN- 13 ANT.— 14 ‘‘(I) IN GENERAL.—Not later 15 than 7 days after the date of receipt 16 of a revised policy or defense of the 17 original policy as submitted by the in- 18 stitution pursuant to clause (ii), the 19 Secretary shall make available to the 20 complainant a copy of such revised 21 policy or defense. 22 ‘‘(II) RESPONSE BY COMPLAIN- 23 ANT.—Not later than 60 days after 24 the date of receipt of a revised policy 25 VerDate Sep 11 2014 19:12 Aug 26, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4483.IS S4483 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 4483 IS or defense of the original policy under 1 subclause (I), the complainant may 2 submit to the Secretary a response to 3 the revised policy or defense of the 4 original policy. 5 ‘‘(III) SUBMISSION TO THE IN- 6 STITUTION OF RESPONSE.—Not later 7 than 7 days after the date of receipt 8 of a response under subclause (II), 9 the Secretary shall submit to the in- 10 stitution a copy of such response. 11 ‘‘(iv) DETERMINATIONS.—If the insti- 12 tution declines to entirely withdraw the 13 policy that occasioned the complaint and 14 either submits a revised policy for review 15 or submits a defense of the policy that oc- 16 casioned the complaint, the Secretary shall, 17 not later than 60 days after the date of the 18 deadline for a response by the complaint as 19 described in clause (iii)(II), make one of 20 the following determinations: 21 ‘‘(I) Determine that the com- 22 plaint in question has insufficient 23 merit to proceed to Second Stage Re- 24 view described in subparagraph (B). 25 VerDate Sep 11 2014 19:12 Aug 26, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S4483.IS S4483 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 4483 IS ‘‘(II) Determine [Text truncated for display. Full text available on Congress.gov.]