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AN ACT relating to constitutional freedoms at public postsecondary education 1
institutions. 2
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 3
Section 1. KRS 164.348 is amended to read as follows: 4
(1) For purposes of this section: 5
(a) "Faculty" means any person tasked by an[a public postsecondary education] 6
institution with providing scholarship, academic research, or teaching, 7
regardless of whether the person is compensated by the [public postsecondary 8
education ]institution; [and] 9
(b) "Institution" means a public postsecondary education institution in the 10
Commonwealth of Kentucky; 11
(c)[(b)] "Public" means any individual that is 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 or graduate student 15
worker when that individual is acting in an official capacity as an employee 16
of the institution; and 17
(e) "Student" means an individual currently enrolled in at least one (1) credit hour 18
at an[a public postsecondary education] institution or a student organization 19
registered pursuant to the policies of an[a public postsecondary education] 20
institution. 21
(2) Consistent with its obligations to respect the rights secured by the Constitutions of 22
the United States and the Commonwealth of Kentucky, a governing board of an[a 23
public postsecondary education] institution shall adopt policies to ensure that: 24
(a) The institution protects the fundamental and constitutional right of all 25
students, [and ]faculty, and the public to freedom of expression, as protected 26
by the First Amendment to the Constitution of the United States and Section 27 UNOFFICIAL COPY 24 RS BR 302
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1 of the Constitution of Kentucky; 1
(b) The institution grants students, [and ]faculty, and the public the broadest 2
possible latitude to speak, write, listen, challenge, learn, and discuss 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 by applicable state or 6
federal law; 7
(d) The institution commits to maintaining a marketplace of ideas where the free 8
exchange of ideas is not suppressed because an idea put forth is considered by 9
some or even most of the members of the institution's community to be 10
offensive, unwise, disagreeable, conservative, liberal, traditional, or radical; 11
(e)[(d)] Students, [and ]faculty, and the public do not substantially obstruct or 12
otherwise substantially interfere with the freedom of others to express views 13
they reject so that a lively and fearless freedom of debate and deliberation is 14
promoted and protected; 15
(f)[(e)] The expression of a student's religious or political viewpoints in 16
classroom, homework, artwork, and other written and oral assignments is free 17
from discrimination or penalty based on the religious or political content of 18
the submissions; 19
(g)[(f)] 1. The selection of students to speak at official events is made in a 20
viewpoint-neutral manner; 21
2. The prepared remarks of the student are not altered before delivery, 22
except in a viewpoint-neutral manner, unless requested by the student. 23
However, student speakers shall not engage in speech that is obscene, 24
vulgar, offensively lewd, or indecent; and 25
3. If the content of the student's speech is such that a reasonable observer 26
may perceive affirmative institutional sponsorship or endorsement of the 27 UNOFFICIAL COPY 24 RS BR 302
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student speaker's religious or political viewpoint, the institution shall 1
communicate, in writing, orally, or both, that the student's speech does 2
not reflect the endorsement, sponsorship, position, or expression of the 3
institution; 4
(h)[(g)] [Student ]Religious and political student organizations are allowed 5
equal access to public forums, room reservations, facilities, or other 6
institutional grounds on the same basis as nonreligious and nonpolitical 7
student organizations; 8
(i)[(h)] No recognized religious or political student organization is hindered or 9
discriminated against in the ordering of its internal affairs, selection of leaders 10
and members, defining of doctrines and principles, and resolving of 11
organizational disputes in the furtherance of its mission, or in its 12
determination that only persons committed to its mission should conduct such 13
activities; 14
(j) 1.[(i)] Student activity [fee ]funding to a student organization is not 15
impacted by[denied based on] the viewpoints that the student 16
organization advocates; and 17
2. Any authority to distribute any institutional funding among student 18
organizations vested with the student government, or any other student 19
organization, shall be contingent upon a viewpoint-neutral 20
distribution of funds, in accordance with the First Amendment to the 21
Constitution of the United States and this subsection; 22
(k)[(j)] The generally accessible, open, outdoor areas of the campus be 23
maintained as traditional public forums for students, [and ]faculty, and the 24
public to express their views, so that the free expression of students, [and 25
]faculty, and the public is not limited to particular areas of the campus often 26
described as "free speech zones"; 27 UNOFFICIAL COPY 24 RS BR 302
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(l)[(k)] There shall be no restrictions on the time, place, and manner of student 1
speech that occurs in the outdoor areas of campus or is protected by the First 2
Amendment of the United States Constitution, except for restrictions that are: 3
1. Reasonable; 4
2. Justified without reference to the content of the regulated speech; 5
3. Narrowly tailored to serve a compelling governmental interest; and 6
4. Limited to provide ample alternative options for the communication of 7
the information; 8
(m) 1.[(l) ]Permit requirements do not prohibit: 9
a. Spontaneous outdoor assemblies or outdoor distribution of 10
literature[,]; and 11
b. Spontaneous use of tables, stationary displays, or yard signs, or 12
the exhibition of images in the generally accessible, open, 13
outdoor areas of the campus. 14
2. Any [although an institution may adopt a ]policy adopted by an 15
institution that grants members of the university community the right to 16
reserve certain outdoor spaces in advance may not restrict the 17
expressive activity protected by subparagraph 1.a. of this paragraph; 18
(n)[(m)] All students and faculty are allowed to invite guest speakers to campus 19
to engage in free speech regardless of the views of the guest speakers; 20
(o)[(n)] Students are not charged fees based on the content of their speech, the 21
content of the speech of guest speakers invited by students, or the anticipated 22
reaction or opposition of listeners to the speech;[ and] 23
(p)[(o)] The institution does not disinvite a speaker invited by a student, student 24
organization, or faculty member because the speaker's anticipated speech may 25
be considered offensive, unwise, disagreeable, conservative, liberal, 26
traditional, or radical by students, faculty, administrators, government 27 UNOFFICIAL COPY 24 RS BR 302
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officials, or members of the public; and 1
(q) The institution defines student-on-student harassment to mean unwelcome 2
conduct directed toward a student that is so severe, pervasive, and 3
objectively offensive that it effectively denies equal access to an educational 4
opportunity or benefit. 5
(3) (a) Any person aggrieved by a violation of any policy adopted or required to have 6
been adopted pursuant to subsection (2) of this section shall have a cause of 7
action against the institution, or any of its agents acting in their official 8
capacities, for damages arising from the violation, including reasonable 9
attorney's fees and litigation costs. 10
(b) A claim brought pursuant to this subsection may be asserted in any court of 11
competent jurisdiction within one (1) year of the date the cause of action 12
accrued. The cause of action shall be deemed to have accrued at the point in 13
time the violation ceases or is cured by the institution. 14
(c) Excluding reasonable attorney's fees and litigation costs, any prevailing 15
claimant shall be awarded no less than one thousand dollars ($1,000) but no 16
more than two hundred fifty thousand dollars ($250,000)[one hundred 17
thousand dollars ($100,000)] cumulatively per action. If multiple claimants 18
prevail and the damages awarded would exceed two hundred fifty thousand 19
dollars ($250,000)[one hundred thousand dollars ($100,000)], the court shall 20
divide two hundred fifty thousand dollars ($250,000)[one hundred thousand 21
dollars ($100,000)] amongst all prevailing claimants equally. 22
(d) Notwithstanding any other statute to the contrary, the Commonwealth 23
waives any claim for civil immunity for any case brought against any 24
institution by a person aggrieved by a violation of any policy adopted or 25
required to have been adopted pursuant to subsection (2) of this section 26
against the institution, or any of its agents acting in their official capacities, 27 UNOFFICIAL COPY 24 RS BR 302
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for injunctive relief and all equitable damages arising from the violation, 1
including but not limited to reasonable attorney's fees and litigation costs. 2
(4) If it is determined, after a final decision in an action brought pursuant to 3
subsection (3) of this section, that: 4
(a) A faculty member or administrator knowingly and intentionally restricted 5
the protected speech or otherwise penalized an individual in violation of any 6
policy adopted or required to have been adopted pursuant to subsection (2) 7
of this section, the faculty member or administrator shall be subject to 8
discipline by the institution through the normal disciplinary processes of the 9
institution, and such discipline may include termination if supported by the 10
totality of the circumstances; and 11
(b) Any student organization empowered to distribute institutional funding 12
among other student organizations, knowingly and intentionally violated 13
any policy adopted or required to have been adopted pursuant to subsection 14
(2) of this section, the institution shall suspend the student organization's 15
authority to distribute institutional funding for a period of at least one (1) 16
year. During this period, all institutional funding for student organizations 17
shall be distributed by the institution. 18
(5) (a) An institution shall not retaliate against any member of the campus 19
community who: 20
1. Files a complaint for an alleged violation of any policy adopted or 21
required to have been adopted pursuant to subsection (2) of this 22
section, including but not limited to any individual who brings an 23
action in accordance with subsection (3) of this section; and 24
2. Acts to protect, or refuses to infringe upon, the free expression of 25
another as protected by any policy adopted or required to have been 26
adopted pursuant to subsection (2) of this section, the First 27 UNOFFICIAL COPY 24 RS BR 302
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Amendment to the Constitution of the United States, or Section 1 of 1
the Constitution of Kentucky. 2
(b) For the purposes of this section, "retaliation" includes but is not limited to 3
a dismissal, suspension, expulsion, reassignment of job duties, job transfer, 4
decrease in funding, termination or nonrenewal of a teaching contract or 5
an extracurricular contract, or other disciplinary act that is intended to 6
punish, embarrass, or harm the individual. 7
(6) (a) The policies adopted pursuant to subsection (2) of this section shall be made 8
available to students and faculty using the following methods: 9
1. Publishing in the institution's student handbook and faculty handbook, 10
whether paper or electronic; [and] 11
2. Posting to a prominent location on the institution's website[ Web site]; 12
and 13
3. Presenting and distributing the information in orientation programs 14
for all new students, faculty, and staff. 15
(b) The policies adopted pursuant to subsection (2) of this section may also be 16
mailed[made available to students and faculty using the following methods: 17
1. Mailing] electronically to students,[ and] faculty, and staff annually 18
using their institutionally provided e-mail addresses[; or 19
2. Including in orientation programs for new students and new faculty]. 20
(7)[(5)] (a) The Council on Postsecondary Education shall develop instructional 21
materials and model trainings for institutions to ensure that members of the 22
campus community understand the role of the institution in preserving the 23
fundamental and constitutional rights of all students, faculty, and the public 24
to freedom of expression, as protected by the First Amendment to the 25
Constitution of the United States, and Section 1 of the Constitution of 26
Kentucky; 27 UNOFFICIAL COPY 24 RS BR 302
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(b) By October 1 each year, an institution shall present an annual training and 1
provide instructional materials to the following members of the campus 2
community to ensure that those individuals understand the role of the 3
institution, and the individual when acting on behalf of the institution, in 4
preserving the fundamental and constitutional rights of all students, faculty, 5
and members of the public to freedom of expression, as protected by the 6
institution's policies adopted pursuant to subsection (2) of this section, the 7
First Amendment to the Constitution of the United States, and Section 1 of 8
the Constitution of Kentucky: 9
1. All faculty members and any student responsible for the instruction of 10
another student, including but not limited to teaching assistants; 11
2. Any student, staff, or administrator of the institution responsible for 12
the discipline or management of any other member of the campus 13
community; 14
3. Any student, staff, or administrator responsible for campus security 15
and safety, including but not limited to campus police officers; 16
4. Any student, staff, or administrator with any oversight of or authority 17
over student organizations; and 18
5. Any student, staff, or administrator responsible for the distribution of 19
student organization or activity funding, including but not limited to 20
members of a student government organization authorized to 21
distribute institutional funds among student organizations. 22
(8) No later than September 1 and February 1 of each year, an institution shall 23
publish a semiannual report on the institution's student organizations and 24
activity funding to a prominent location on the institution's website that is 25
relevant to the contents of the report and readily accessible to the public without a 26
password. The report shall include: 27 UNOFFICIAL COPY 24 RS BR 302
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(a) A summary of the policies and procedures of the institution for the 1
distribution of funds to student organizations, including but not limited to 2
any policies or procedures adopted to ensure that student organization 3
funding is not impacted by the viewpoints of a student organization; 4
(b) The total number of institutional funds budgeted for student organizations 5
during the current fiscal year and the total amount of funds distributed by 6
or on behalf of the institution to student organizations during the period of 7
time since the last report; 8
(c) An itemization of the specific amount of funds budgeted for each student 9
organization during the current fiscal year, the total number of funds 10
distributed by or on behalf of the institution to each student organization 11
during the period of time since the last report, and the dates of each 12
distribution; 13
(d) The minutes of any meeting held to determine the distribution of student 14
organization and activity funding held during the period of time since the 15
last report, which shall include a clear statement of the rationale behind any 16
decision to increase, decrease, or deny funding to a student organization; 17
and 18
(e) All budgets, budget proposals or requests, itemizations of spending, or other 19
financial documents submitted by or on behalf of a student organization to 20
the institution, or student government when acting on behalf of the 21
institution, with regard to the distribution of student organization funding. 22
(9) (a) Nothing in this section shall be construed to: 23
1. Grant students the right to engage in conduct that intentionally, 24
materially, and substantially disrupts another's expressive activity if that 25
activity is occurring in a campus space previously scheduled or reserved 26
for that activity or under the exclusive use or control of a particular 27 UNOFFICIAL COPY 24 RS BR 302
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group; or 1
2. Impair the ability of an institution or law enforcement to enforce any 2
state law, including but not limited to KRS 525.090. 3
(b) Conduct intentionally, materially, and substantially disrupts another's 4
expressive activity if it significantly hinders the expressive activity of another 5
person or group, or prevents the communication of a message or the 6
transaction of a lawful meeting, gathering, or procession by: 7
1. Being of a violent or seriously disruptive nature; or 8
2. Physically blocking or significantly hindering any person from 9
attending, hearing, viewing, or otherwise participating in an expressive 10
activity. 11
(c) Conduct does not intentionally, materially, and substantially disrupt another's 12
expressive activity if the conduct: 13
1. Is protected under the First Amendment to the United States 14
Constitution or the Constitution of the Commonwealth of Kentucky, 15
including but not limited to lawful protests and counter-protests in the 16
outdoor areas of campus generally accessible to the public, except 17
during times when those areas have been reserved in advance for other 18
events; or 19
2. Is an isolated occurrence that causes minor, brief, and nonviolent 20
disruptions of expressive activity. 21
SECTION 2. A NEW SECTION OF KRS CHAPTER 164 IS CREATED TO 22
READ AS FOLLOWS: 23
(1) An institution does not have jurisdiction or authority over any association, group, 24
or organization that is not registered or affiliated with the institution, regardless 25
of whether (1) one or more of its members is a student of the institution, and shall 26
not restrict the free speech or freedom of association of the members of the 27 UNOFFICIAL COPY 24 RS BR 302
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association, group, or organization beyond the restrictions permitted to the 1
general public under Section 1 of this Act and the United States Constitutions 2
and the Constitution of Commonwealth of Kentucky. 3
(2) An institution shall not restrict the freedom of a registered student organization 4
to associate with a lawful association, group, or organization that is not 5
registered or affiliated with the institution. 6
(3) Nothing in this subsection shall be construed to require an institution to extend 7
the same privileges afforded to registered student organizations to an association, 8
group, or organization that is not registered or affiliated with the institution or to 9
impair the institution's ability to suspend or revoke a student organization's 10
registration or affiliation with the institution or ability to deny registration to a 11
student organization that continued to operate as an apparent student 12
organization during a suspension of a registration or affiliation with the 13
institution. 14