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AN ACT relating to freedom of speech at public postsecondary education 1
institutions. 2
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 3
ď˘Section 1. KRS 164.348 is amended to read as follows: 4
(1) For purposes of this section: 5
(a) "Institution" means a public postsecondary education institution in the 6
Commonwealth of Kentucky; 7
(b) "Faculty" means any person tasked by an[a public postsecondary education 8
institution] with providing scholarship, academic research, or teaching, 9
regardless of whether the person is compensated by the [public postsecondary 10
education ]institution; [and] 11
(c)[(b)] "Public" means all individuals that are not a faculty member, student, 12
staff, or otherwise affiliated with an institution; 13
(d) "Staff" means an individual who is employed by an institution but is not 14
faculty, including but not limited to a student worker, graduate student 15
worker, or other non-faculty staff; and 16
(e) "Student" means an individual currently enrolled in at least one (1) credit hour 17
at an[a public postsecondary education] institution or a student organization 18
registered pursuant to the policies of an[a public postsecondary education] 19
institution. 20
(2) Consistent with its obligations to respect the rights secured by the Constitutions of 21
the United States and the Commonwealth of Kentucky, a governing board of an[a 22
public postsecondary education] institution shall adopt policies to ensure that: 23
(a) The institution protects the fundamental and constitutional right of all 24
students, [and ]faculty, staff, and the public to freedom of expression, as 25
protected by the First Amendment to the Constitution of the United States 26
and Section 1 of the Constitution of Kentucky; 27 UNOFFICIAL COPY 22 RS BR 1095
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(b) The institution grants students, [and ]faculty, staff, and the public the 1
broadest possible latitude to speak, write, listen, challenge, learn, and discuss 2
any issue; 3
(c) The institution does not restrict, regulate, or punish speech or conduct that 4
is protected speech or expression that occurs off-campus, whether it be in-5
person or online, except conduct that is prohibited under Title IX of the 6
Education Amendments of 1972, 20 U.S.C. secs. 1681 et seq., applicable 7
federal regulations, binding federal judicial precedent, or state or federal 8
law; 9
(d) The institution commits to maintaining a marketplace of ideas where the free 10
exchange of ideas is not suppressed because an idea put forth is considered by 11
some or even most of the members of the institution's community to be 12
offensive, unwise, disagreeable, conservative, liberal, traditional, or radical; 13
(e)[(d)] Students, [and ]faculty, staff, and the public do not substantially 14
obstruct or otherwise substantially interfere with the freedom of others to 15
express views they reject so that a lively and fearless freedom of debate and 16
deliberation is promoted and protected; 17
(f)[(e)] The expression of a student's religious or political viewpoints in 18
classroom, homework, artwork, and other written and oral assignments is free 19
from discrimination or penalty based on the religious or political content of 20
the submissions; 21
(g)[(f)] 1. The selection of students to speak at official events is made in a 22
viewpoint-neutral manner; 23
2. The prepared remarks of the student are not altered before delivery, 24
except in a viewpoint-neutral manner, unless requested by the student. 25
However, student speakers shall not engage in speech that is obscene, 26
vulgar, offensively lewd, or indecent; and 27 UNOFFICIAL COPY 22 RS BR 1095
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3. If the content of the student's speech is such that a reasonable observer 1
may perceive affirmative institutional sponsorship or endorsement of the 2
student speaker's religious or political viewpoint, the institution shall 3
communicate, in writing, orally, or both, that the student's speech does 4
not reflect the endorsement, sponsorship, position, or expression of the 5
institution; 6
(h)[(g)] Student religious and political organizations are allowed equal access to 7
public forums, room reservations, facilities, or other institutional grounds 8
on the same basis as nonreligious and nonpolitical organizations; 9
(i)[(h)] No recognized religious or political student organization is hindered or 10
discriminated against in the ordering of its internal affairs, selection of leaders 11
and members, defining of doctrines and principles, and resolving of 12
organizational disputes in the furtherance of its mission, or in its 13
determination that only persons committed to its mission should conduct such 14
activities; 15
(j) 1.[(i)] Student activity [fee ]funding to a student organization is not 16
impacted by[denied based on] the viewpoints that the student 17
organization advocates; 18
2. Any authority to distribute any institutional funding among student 19
organizations vested with the student government, or any other 20
student organization, shall be contingent upon a viewpoint-neutral 21
distribution of funds, in accordance with the First Amendment to the 22
Constitution of the United States and this subsection; 23
(k)[(j)] The generally accessible, open, outdoor areas of the campus be 24
maintained as traditional public forums for students, [and ]faculty, staff, and 25
the public to express their views, so that the free expression of students, [and 26
]faculty, staff, and the public is not limited to particular areas of the campus 27 UNOFFICIAL COPY 22 RS BR 1095
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often described as "free speech zones"; 1
(l)[(k)] There shall be no buffer to any area of a building or residence hall 2
that is immediately adjacent to a generally accessible, open, outdoor area of 3
the campus and used as a traditional public forum for students, faculty, 4
staff, and the public to express their views; 5
(m) There shall be no restrictions on the time, place, and manner of student speech 6
that occurs in the outdoor areas of campus or is protected by the First 7
Amendment of the United States Constitution, except for restrictions that are: 8
1. Reasonable; 9
2. Justified without reference to the content of the regulated speech; 10
3. Narrowly tailored to serve a compelling governmental interest; and 11
4. Limited to provide ample alternative options for the communication of 12
the information; 13
(n) 1.[(l) ]Permit requirements do not prohibit: 14
a. Spontaneous outdoor assemblies or outdoor distribution of 15
literature, in generally accessible outdoor areas, including but 16
not limited to generally accessible courtyards between residence 17
halls or the generally accessible outdoor areas immediately 18
adjacent to residence halls; and 19
b. Spontaneous use of tables, stationary displays, or yard signs, or 20
the exhibition of images in the generally accessible, open, 21
outdoor areas of the campus; 22
2. The expressive activity protected by subparagraph 1. of this paragraph 23
shall be permitted by the institution if the expressive activity would 24
not: 25
a. Interfere with the normal operations of the institution, including 26
but not limited to classes, scheduled meetings, events, 27 UNOFFICIAL COPY 22 RS BR 1095
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ceremonies, and other educational processes; 1
b. Prevent or substantially restrict vehicular or pedestrian traffic; 2
or 3
c. Interfere with the use or delivery of emergency services; and 4
3. Any [although an institution may adopt a ]policy adopted by an 5
institution that grants members of the university community the right to 6
reserve certain outdoor spaces in advance may not restrict the 7
expressive activity protected by subparagraph 1.a. of this paragraph; 8
(o)[(m)] All students and faculty are allowed to invite guest speakers to campus 9
to engage in free speech regardless of the views of the guest speakers; 10
(p)[(n)] Students are not charged fees based on the content of their speech, the 11
content of the speech of guest speakers invited by students, or the anticipated 12
reaction or opposition of listeners to the speech;[ and] 13
(q)[(o)] The institution does not disinvite a speaker invited by a student, student 14
organization, or faculty member because the speaker's anticipated speech may 15
be considered offensive, unwise, disagreeable, conservative, liberal, 16
traditional, or radical by students, faculty, administrators, government 17
officials, or members of the public; and 18
(r) The institution defines student-on-student harassment to mean unwelcome 19
conduct directed toward a student that is discriminatory on a basis 20
prohibited by federal or state law, and that is so severe, pervasive, and 21
objectively offensive that it effectively denies equal access to an educational 22
opportunity or benefit. 23
(3) (a) Any person aggrieved by a violation of any policy adopted or required to have 24
been adopted pursuant to subsection (2) of this section shall have a cause of 25
action against the institution, or any of its agents acting in their official 26
capacities, for damages arising from the violation, including reasonable 27 UNOFFICIAL COPY 22 RS BR 1095
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attorney's fees and litigation costs. 1
(b) A claim brought pursuant to this subsection may be asserted in any court of 2
competent jurisdiction within one (1) year of the date the cause of action 3
accrued. The cause of action shall be deemed to have accrued at the point in 4
time the violation ceases or is cured by the institution. 5
(c) Excluding reasonable attorney's fees and litigation costs, any prevailing 6
claimant shall be awarded no less than one thousand dollars ($1,000) but no 7
more than two hundred fifty thousand dollars ($250,000)[one hundred 8
thousand dollars ($100,000)] cumulatively per action. If multiple claimants 9
prevail and the damages awarded would exceed two hundred fifty thousand 10
dollars ($250,000)[one hundred thousand dollars ($100,000)], the court shall 11
divide two hundred fifty thousand dollars ($250,000)[one hundred thousand 12
dollars ($100,000)] amongst all prevailing claimants equally. 13
(d) The Commonwealth waives immunity for prospective equitable and 14
declaratory relief only, under the Eleventh Amendment to the Constitution 15
of the United States, for cases brought against any institution in federal 16
jurisdictions by any person aggrieved by a violation of any policy adopted or 17
required to have been adopted pursuant to subsection (2) of this section 18
against the institution, or any of its agents acting in their official capacities, 19
for damages arising from the violation, including but not limited to 20
reasonable attorney's fees and litigation costs. 21
(4) If it is determined, after a final decision in an action brought pursuant to 22
subsection (3) of this section, that: 23
(a) A faculty member or administrator knowingly and intentionally restricted 24
the protected speech or otherwise penalized an individual in violation of any 25
policy adopted or required to have been adopted pursuant to subsection (2) 26
of this section, the faculty member or administrator shall be subject to 27 UNOFFICIAL COPY 22 RS BR 1095
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discipline by the institution through the normal disciplinary processes of the 1
institution, and such discipline may include termination if supported by the 2
totality of the circumstances; and 3
(b) Any student organization empowered to distribute institutional funding 4
among other student organizations, knowingly and intentionally violated 5
any policy adopted or required to have been adopted pursuant to subsection 6
(2) of this section, the institution shall suspend the student government 7
organization's authority to distribute institutional funding for a period of at 8
least one (1) year. During this period, all institutional funding for student 9
organizations shall be distributed by the institution. 10
(5) (a) An institution shall not retaliate against any member of the campus 11
community who: 12
1. Files a complaint for an alleged violation of any policy adopted or 13
required to have been adopted pursuant to subsection (2) of this 14
section, including but not limited to any individual who brings an 15
action in accordance with subsection (3) of this section; and 16
2. Acts to protect, or refuses to infringe upon, the free expression of 17
another as protected by any policy adopted or required to have been 18
adopted pursuant to subsection (2) of this section, the First 19
Amendment to the Constitution of the United States, or Section I of 20
the Constitution of Kentucky. 21
(b) For the purposes of this section, "retaliation" includes but is not limited to 22
a dismissal, suspension, expulsion, reassignment of job duties, job transfer, 23
decrease in funding, termination or nonrenewal of a teaching contract or 24
an extracurricular contract, or other disciplinary act that is intended to 25
punish, embarrass, or harm the individual. 26
(6) (a) The policies adopted pursuant to subsection (2) of this section shall be made 27 UNOFFICIAL COPY 22 RS BR 1095
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available to students and faculty using the following methods: 1
1. Publishing in the institution's student handbook and faculty handbook, 2
whether paper or electronic; [and] 3
2. Posting to a prominent location on the institution's Web site; and 4
3. Presenting and distributing the information in orientation programs 5
for all new students, faculty, and staff. 6
(b) The policies adopted pursuant to subsection (2) of this section may also be 7
mailed[made available to students and faculty using the following methods: 8
1. Mailing] electronically to students,[ and] faculty, and staff annually 9
using their institutionally provided e-mail addresses[; or 10
2. Including in orientation programs for new students and new faculty]. 11
(7)[(5)] (a) The Council on Postsecondary Education shall develop instructional 12
materials and model trainings for institutions to ensure that members of the 13
campus community understand the role of the institution in preserving the 14
fundamental and constitutional rights of all students, faculty, staff, and the 15
public to freedom of expression, as protected by the First Amendment to the 16
Constitution of the United States, and Section 1 of the Constitution of 17
Kentucky; 18
(b) An institution shall present instructional materials and trainings to the 19
following members of the campus community to ensure that those 20
individuals understand the role of the institution, and the individual when 21
acting on behalf of the institution, in preserving the fundamental and 22
constitutional rights of all students, faculty, staff, and members of the 23
public to freedom of expression, as protected by the institution's policies 24
adopted pursuant to subsection (2) of this section, the First Amendment to 25
the Constitution of the United States, and Section 1 of the Constitution of 26
Kentucky: 27 UNOFFICIAL COPY 22 RS BR 1095
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1. All faculty members and any student responsible for the instruction of 1
another student, including but not limited to teaching assistants; 2
2. Any student, staff, or administrator of the institution responsible for 3
the discipline or management of any other member of the campus 4
community; 5
3. Any student, staff, or administrator responsible for campus security 6
and safety, including but not limited to campus police officers; 7
4. Any student, staff, or administrator with any oversight of or authority 8
over student government organizations; and 9
5. Any student, staff, or administrator responsible for the distribution of 10
student organization or activity funding, including but not limited to 11
members of a student government organization authorized to 12
distribute institutional funds among student organizations. 13
(8) No later than September 1 and February 1 of each year, an institution shall 14
publish a semiannual report on the institution's student organizations and 15
activity funding to a prominent location on the institution's Web site that is 16
relevant to the contents of the report and readily accessible to the public without a 17
password. The report shall include: 18
(a) A summary of the policies and procedures of the institution for the 19
distribution of funds to student organizations, including but not limited to 20
any policies or procedures adopted to ensure that student organization 21
funding is not impacted by the viewpoints of a student organization; 22
(b) The total number of institutional funds budgeted for student organizations 23
during the current fiscal year and the total amount of funds distributed by 24
or on behalf of the institution to student organizations during the period of 25
time since the last report; 26
(c) An itemization of the specific amount of funds budgeted for each student 27 UNOFFICIAL COPY 22 RS BR 1095
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organization during the current fiscal year, the total number of funds 1
distributed by or on behalf of the institution to each student organization 2
during the period of time since the last report, and the dates of each 3
distribution; 4
(d) The minutes of any meeting held to determine the distribution of student 5
organization and activity funding held during the period of time since the 6
last report, which shall include a clear statement of the rationale behind 7
any decision to increase, decrease, or deny funding to a student 8
organization; and 9
(e) All budgets, budget proposals or requests, itemizations of spending, or other 10
financial documents submitted by or on behalf of a student organization to 11
the institution, or student government when acting on behalf of the 12
institution, with regard to the distribution of student organization funding. 13
(9) (a) Nothing in this section shall be construed to grant students the right to engage 14
in conduct that intentionally, materially, and substantially disrupts another's 15
expressive activity if that activity is occurring in a campus space previously 16
scheduled or reserved for that activity or under the exclusive use or control of 17
a particular group. 18
(b) Conduct intentionally, materially, and substantially disrupts another's 19
expressive activity if it significantly hinders the expressive activity of another 20
person or group, or prevents the communication of a message or the 21
transaction of a lawful meeting, gathering, or procession by: 22
1. Being of a violent or seriously disruptive nature; or 23
2. Physically blocking or significantly hindering any person from 24
attending, hearing, viewing, or otherwise participating in an expressive 25
activity. 26
(c) Conduct does not intentionally, materially, and substantially disrupt another's 27 UNOFFICIAL COPY 22 RS BR 1095
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expressive activity if the conduct: 1
1. Is protected under the First Amendment to the United States 2
Constitution or the Constitution of the Commonwealth of Kentucky, 3
including but not limited to lawful protests and counter-protests in the 4
outdoor areas of campus generally accessible to the public, except 5
during times when those areas have been reserved in advance for other 6
events; or 7
2. Is an isolated occurrence that causes minor, brief, and nonviolent 8
disruptions of expressive activity. 9