I 118TH CONGRESS 1ST SESSION H. R. 2508 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 APRIL 6, 2023 Mr. MURPHY (for himself, Mr. GROTHMAN, Mr. BABIN, Mr. FITZGERALD, and Mr. TIFFANY) introduced the following bill; which was referred to the Committee on Education and the Workforce 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 22:52 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2508.IH H2508 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •HR 2508 IH SEC. 2. PROTECTION OF STUDENT SPEECH AND ASSOCIA- 1 TION RIGHTS. 2 Section 112(a) of the Higher Education Act of 1965 3 (20 U.S.C. 1011a(a)) is amended— 4 (1) by redesignating paragraph (2) as para- 5 graph (3); and 6 (2) by inserting after paragraph (1) the fol- 7 lowing: 8 ‘‘(2) It is the sense of Congress that— 9 ‘‘(A) every individual should be free to profess, 10 and to maintain, the opinion of such individual in 11 matters of religion or philosophy, and that pro- 12 fessing or maintaining such opinion should in no 13 way diminish, enlarge, or affect the civil liberties or 14 rights of such individual on the campus of an insti- 15 tution of higher education; 16 ‘‘(B) no public institution of higher education 17 directly or indirectly receiving financial assistance 18 under this Act should limit religious expression, free 19 expression, or any other rights provided under the 20 First Amendment to the Constitution of the United 21 States; 22 ‘‘(C) free speech zones and restrictive speech 23 codes are inherently at odds with the freedom of 24 speech guaranteed by the First Amendment to the 25 Constitution of the United States; 26 VerDate Sep 11 2014 22:52 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2508.IH H2508 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •HR 2508 IH ‘‘(D) bias reporting systems are susceptible to 1 abuses that may put them at odds with the freedom 2 of speech guaranteed by the First Amendment to the 3 Constitution of the United States; and 4 ‘‘(E) no public institution of higher education 5 directly or indirectly receiving financial assistance 6 under this Act should restrict the speech of such in- 7 stitution’s students through improperly restrictive 8 zones, codes, or bias reporting systems.’’. 9 SEC. 3. CAMPUS SPEECH POLICIES AT INSTITUTIONS OF 10 HIGHER EDUCATION. 11 Title IV of the Higher Education Act of 1965 (20 12 U.S.C. 1070 et seq.) is amended— 13 (1) in section 487(a), by adding at the end the 14 following: 15 ‘‘(30)(A) In the case of a public institution 16 (other than an institution described in section 17 494A(b)(4)), the institution will comply with the ex- 18 pressive activity protections described in section 19 494A. 20 ‘‘(B) In the case of a private institution (other 21 than an institution described in section 494B(e)), 22 the institution will comply with the expressive activ- 23 ity requirements described in section 494B.’’; and 24 VerDate Sep 11 2014 22:52 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2508.IH H2508 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •HR 2508 IH (2) in part G, by adding at the end the fol- 1 lowing: 2 ‘‘SEC. 494A. CAMPUS SPEECH POLICIES AT PUBLIC UNIVER- 3 SITIES. 4 ‘‘(a) DEFINITION OF EXPRESSIVE ACTIVITIES.— 5 ‘‘(1) IN GENERAL.—In this section, the term 6 ‘expressive activity’ includes— 7 ‘‘(A) peacefully assembling, protesting, 8 speaking, or listening; 9 ‘‘(B) distributing literature; 10 ‘‘(C) carrying a sign; 11 ‘‘(D) circulating a petition; or 12 ‘‘(E) other expressive rights guaranteed 13 under the First Amendment to the Constitution 14 of the United States, including religious rights. 15 ‘‘(2) EXCLUSIONS.—In this section, the term 16 ‘expressive activity’ does not include unprotected 17 speech (as defined by the precedents of the Supreme 18 Court of the United States). 19 ‘‘(b) EXPRESSIVE ACTIVITIES AT AN INSTITUTION.— 20 ‘‘(1) IN GENERAL.—Each public institution of 21 higher education participating in a program under 22 this title may not prohibit, subject to paragraph (2), 23 a person from freely engaging in noncommercial ex- 24 pressive activity in a generally accessible area on the 25 VerDate Sep 11 2014 22:52 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2508.IH H2508 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •HR 2508 IH institution’s campus if the person’s conduct is law- 1 ful. 2 ‘‘(2) RESTRICTIONS.—An institution of higher 3 education described in paragraph (1) may not main- 4 tain or enforce time, place, or manner restrictions on 5 an expressive activity in a generally accessible area 6 of the institution’s campus unless the restriction— 7 ‘‘(A) is necessary to achieve a compelling 8 governmental interest; 9 ‘‘(B) is the least restrictive means of fur- 10 thering that compelling governmental interest; 11 ‘‘(C) is based on published, content-neu- 12 tral, and viewpoint-neutral criteria; 13 ‘‘(D) leaves open ample alternative chan- 14 nels for communication; and 15 ‘‘(E) provides for spontaneous assembly 16 and distribution of literature. 17 ‘‘(3) APPLICATION.—The protections provided 18 under paragraph (1) do not apply to expressive ac- 19 tivity in an area on an institution’s campus that is 20 not a generally accessible area. 21 ‘‘(4) NONAPPLICATION TO SERVICE ACAD- 22 EMIES.—This section shall not apply to an institu- 23 tion of higher education whose primary purpose is 24 VerDate Sep 11 2014 22:52 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2508.IH H2508 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •HR 2508 IH the training of individuals for the military services 1 of the United States, or the merchant marine. 2 ‘‘(c) CAUSES OF ACTION.— 3 ‘‘(1) AUTHORIZATION.—The following persons 4 may bring an action in a Federal court of competent 5 jurisdiction to enjoin a violation of subsection (b) or 6 to recover compensatory damages, reasonable court 7 costs, or reasonable attorney fees: 8 ‘‘(A) The Attorney General. 9 ‘‘(B) A person claiming that the person’s 10 expressive activity rights, as described in sub- 11 section (b)(1), were violated. 12 ‘‘(2) ACTIONS.—Notwithstanding any other 13 provision of law, in an action brought under this sec- 14 tion, the Federal court shall decide de novo all rel- 15 evant questions of fact and law, including the inter- 16 pretation of constitutional, statutory, and regulatory 17 provisions, unless the parties stipulate otherwise. In 18 an action brought under this subsection, if the court 19 finds a violation of subsection (b), the court— 20 ‘‘(A) shall— 21 ‘‘(i) enjoin the violation; and 22 ‘‘(ii) if a person whose expressive ac- 23 tivity rights were violated brought the ac- 24 tion, award the person— 25 VerDate Sep 11 2014 22:52 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2508.IH H2508 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •HR 2508 IH ‘‘(I) not less than $500 for an 1 initial violation; and 2 ‘‘(II) if the person notifies the in- 3 stitution of the violation, $50 for each 4 day the violation continues after the 5 notification if the institution did not 6 act to discontinue the cause of the 7 violation; and 8 ‘‘(B) may award a prevailing plaintiff— 9 ‘‘(i) compensatory damages; 10 ‘‘(ii) reasonable court costs; or 11 ‘‘(iii) reasonable attorney fees. 12 ‘‘(3) BASIS FOR ENACTMENT.—This subsection 13 is enacted as an exercise of the enforcement power 14 of the Congress under section 5 of the Fourteenth 15 Amendment to the Constitution to protect expressive 16 activities. 17 ‘‘(d) STATUTE OF LIMITATIONS.— 18 ‘‘(1) IN GENERAL.—Except as provided in para- 19 graph (3), an action under subsection (c) may not 20 be brought later than 1 year after the date of the 21 violation. 22 ‘‘(2) CONTINUING VIOLATION.—Each day that 23 a violation of subsection (b) continues after an ini- 24 tial violation of subsection (b), and each day that an 25 VerDate Sep 11 2014 22:52 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2508.IH H2508 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •HR 2508 IH institution’s policy in violation of subsection (b) re- 1 mains in effect, shall constitute a continuing viola- 2 tion of subsection (b). 3 ‘‘(3) EXTENSION.—For a continuing violation 4 described in paragraph (2), the limitation described 5 in paragraph (1) shall extend to 1 year after the 6 date on which the most recent violation occurs. 7 ‘‘(e) FEDERAL REVIEW OF SPEECH POLICIES.— 8 ‘‘(1) NO ELIGIBILITY FOR FUNDS.— 9 ‘‘(A) IN GENERAL.—No public institution 10 of higher education shall be eligible to receive 11 funds under this Act, including participation in 12 any program under this title, if the Secretary 13 determines that the institution— 14 ‘‘(i) maintains a policy that infringes 15 upon the expressive rights of students 16 under the First Amendment to the Con- 17 stitution of the United States; or 18 ‘‘(ii) maintains or enforces time, 19 place, or manner restrictions on an expres- 20 sive activity in a generally accessible area 21 of the institution’s campus that do not 22 comply with subparagraphs (A) through 23 (E) of subsection (b)(2). 24 VerDate Sep 11 2014 22:52 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2508.IH H2508 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •HR 2508 IH ‘‘(B) PROHIBITION.—The Secretary may 1 not conduct an investigation for purposes of 2 making a determination under subparagraph 3 (A) with respect to an institution of higher edu- 4 cation, unless such an investigation is con- 5 ducted under paragraph (4) with respect to a 6 complaint received under paragraph (2). 7 ‘‘(C) COURT REVIEW.—Notwithstanding 8 any other provision of law, the Secretary’s de- 9 terminations under this subsection shall be re- 10 viewed de novo with respect to all relevant ques- 11 tions of fact and law, including the interpreta- 12 tion of constitutional, statutory, and regulatory 13 provisions, unless the parties stipulate other- 14 wise. 15 ‘‘(2) DESIGNATION OF AN EMPLOYEE TO RE- 16 CEIVE COMPLAINTS.—The Secretary shall designate 17 an employee in the Office of Postsecondary Edu- 18 cation of the Department to receive complaints 19 (whether electronically or by mail) from students or 20 student organizations at a given public institution of 21 higher education, or from any other person or orga- 22 nization, regarding policies at the institution that 23 meet the description of clause (i) or (ii) of para- 24 graph (1)(A). 25 VerDate Sep 11 2014 22:52 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2508.IH H2508 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •HR 2508 IH ‘‘(3) COMPLAINT.—A complaint submitted 1 under subparagraph (2)— 2 ‘‘(A) shall include the provision of the in- 3 stitution’s policy the complainant believes meets 4 the description of clause (i) or (ii) of paragraph 5 (1)(A), along with any evidence regarding the 6 operation and enforcement of such policy the 7 complainant deems relevant; and 8 ‘‘(B) may include an argument and any 9 other supplemental information as to why the 10 policy in question meets such description. 11 ‘‘(4) SYSTEM OF REVIEW.— 12 ‘‘(A) FIRST STAGE REVIEW.— 13 ‘‘(i) REQUEST FOR RESPONSE.—Not 14 later than 7 days after the date of receipt 15 of a complaint under paragraph (2), the 16 Secretary shall review the complaint and 17 request a response to the complaint from 18 the institution. 19 ‘‘(ii) INSTITUTION RESPONSE.—Not 20 later than 30 days after the date the Sec- 21 retary requests a response under clause (i), 22 the institution shall— 23 ‘‘(I) certify to the Secretary that 24 the institution has entirely withdrawn 25 VerDate Sep 11 2014 22:52 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2508.IH H2508 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •HR 2508 IH the policy that occasioned the com- 1 plaint; 2 ‘‘(II) submit a revised policy for 3 review by the Secretary; or 4 ‘‘(III) submit a defense of the 5 policy that occasioned the complaint. 6 ‘‘(iii) AVAILABILITY TO COMPLAIN- 7 ANT.— 8 ‘‘(I) IN GENERAL.—Not later 9 than 7 days after the date of receipt 10 of a revised policy or defense of the 11 original policy as submitted by the in- 12 stitution pursuant to clause (ii), the 13 Secretary shall make available to the 14 complainant a copy of such revised 15 policy or defense. 16 ‘‘(II) RESPONSE BY COMPLAIN- 17 ANT.—Not later than 60 days after 18 the date of receipt of a revised policy 19 or defense of the original policy under 20 subclause (I), the complainant may 21 submit to the Secretary a response to 22 the revised policy or defense of the 23 original policy. 24 VerDate Sep 11 2014 22:52 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2508.IH H2508 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •HR 2508 IH ‘‘(III) SUBMISSION TO THE IN- 1 STITUTION OF RESPONSE.—Not later 2 than 7 days after the date of receipt 3 of a response under subclause (II), 4 the Secretary shall submit to the in- 5 stitution a copy of such response. 6 ‘‘(iv) DETERMINATIONS.—If the insti- 7 tution declines to entirely withdraw the 8 policy that occasioned the complaint and 9 either submits a revised policy for review 10 or submits a defense of the policy that oc- 11 casioned the complaint, the Secretary shall, 12 not later than 60 days after the date of the 13 deadline for a response by the complaint as 14 described in clause (iii)(II), make one of 15 the following determinations: 16 ‘‘(I) Determine that the com- 17 plaint in question has insufficient 18 merit to proceed to Second Stage Re- 19 view described in subparagraph (B). 20 ‘‘(II) Determine that the com- 21 plaint in question has sufficient merit 22 to proceed to Second Stage Review 23 described in subparagraph (B). 24 VerDate Sep 11 2014 22:52 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H2508.IH H2508 pbinns on DSKJLVW7X2PROD with $$_JOB 13 •HR 2508 IH ‘‘(v) NOTIFICATION.—Not later than 1 7 days after the [Text truncated for display. 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